Sick leave

ACAS was useful thank you

May I advise that you get yourself a copy of the ACAS code of practice and read and implement it, it is simple, straightforward and reasonable. Your friendly lawyer.

Many thanks Carole you have confirmed what I thought.

Michelle - Taking everything that Tony has said, you can be sure that if you did go ahead and dismiss without bothering to get a report from a GP after you had sought permission from an employee to get a report, it would not be something that a Tribunal would look favourably at.

It is likely that before even getting to Tribunal you would need a report anyway so I cannot see what on earth would possess you or anyone else to take such action without that information because you need to know what you are dealing with.

If the employee has agreed whats the problem? If it was a case they were trying to withhold information then perhaps I could understand you not bothering and have a valid explanation for turning up without one.

As a warning - a recent tribunal I was at the judge stopped it in the first 10 minutes as there were no medical reports, even though both sides were not disputing this particular point! Waste of 18 months preparation.

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This post has been removed because it contravened our guidelines.

This post has been removed because it contravened our guidelines.

Michelle

It is generally assumed that a specialist opinion will carry more weight than a generalist when giving advice within his speciality. Tribunals take this view, and an employer would be acting reasonably if he followed this line. Therefore a Consultant Occupational Physician's opinion would carry more weight than an Occupational Physician not on the specialist register, who would in turn carry more weight than a GP.

There is, of course, a difference between qualifications and experience, and it could be that a GP might have more experience in that area than the other two, but this would be difficult to demonstrate and would not be a safe assumption to make.

Comparing the expertise of a specialist nurse practitioner (OHA) and a specialist doctor is likely to raise all sorts of political issues and further comments, but the training is different, particularly the medical background. A specialist doctor is more likely to have a detailed understanding of the underlying medical diagnosis and treatment, but may have the same or less understanding of the workplace issues.

In many of the organisations I work in, the nurses know much more about the work processes and interpersonal relationships than I do, while I know more about the disease processes and the impact these have on work and vice versa. As a result we work very well as a team.

I would suggest that in many work-related issues a senior OHA will have more expert knowledge than a GP with no OH training but not necessarily in all cases. Tribunals may not necessarily understand the level of expertise an OHA has.

If an employer has advice from an OHA or OHP, there is no absolute requirement to seek advice from the GP. There may be times when a report should be requested, but this should be a decision for the OHA or OHP to make and it is not a frequent requirement. If you have sought no OH or GP advice you may be dismissing unfairly.

Tony

So who has the seniority an Occupational Health Advisor, a Consultant Occupational Physician or the GP who issued the sick note?
Secondly if the employee gives consent for the GP to be approached but no-one approaches the GP can an employee then be sacked for inefficiency?

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A very interesting point. Thank you Tony

James

There is a 'grey area' with Stringer. It is possible to be unfit to take a holiday but fit for work. Someone with a knee sprain may not be able to go skiing but may be capable of working in a call centre. In those circumstances if they wish to claim their holiday back, they would need to turn up for work instead. If they happen to be in the Alps at the time, arguably they are no different to the employee who was stuck abroad when flights were cancelled or could not get into work because of snow. This is of course a matter for management to deal with in the most fair and appropriate way.

Going back to the original question from Dave, as 95% of back pain is not caused by any significant underlying pathology, the person will not be harmed by working so if they choose to return before the end of their sick note this would be entirely reasonable and understandable. In most cases they did not need to be off in the first place and will benefit from the activity they get while working.

Tony

Think we've forgotten the European case (Stringer v HMRC - google it) whereby holiday leave that overlapped sick leave always had to be given as holiday leave to use on a later occasion (if I have understood correctly).

To answer Dave's " bottom line" question I would say that yes they are allowed the holiday again.

Perhaps someone more knowledgeable than me can add to this.

Thanks everyone for your responses - really helpful.
We are a small charity and I would say we are extremely sympathetic to individuals who have problems in their lives, whether that is sickness or just personal problems. I guess because of this it does grate slightly when someone takes advantage of the good nature of the organisation. All that happens is that the Board decide to tighten up and we all suffer.
Richard asked on the character of the individual; while I have never really questioned this, but for the last two years there has been a deffinite shift in their behaviour and now I would say they were anything but hero. But thats life! Nothing's easy is it!
Thanks again
Dave

"...at the time have always discussed this with the employee." Actually Melissa I think this says it all - and probably more productive than stressing all the angles!

Hi Dave
Having read the other two responces from Richard and Mitch, and believe they are both correct and alot more experienced than me, I would like to add a little something.
Perhaps you could ask the employee what they would prefer to do, I have know similar situations in the past and working for a small company at the time have always discussed this with the employee.
In my experience, where there is no company sick pay and the employee will only recieve SSP, if the employee returns to work before the sick note expires then they would only recieve SSP for the time they were off sick. Factor in the 3 waiting days and the employee would only recieve about £30 plus change. Employee whom I have dealt with have in the past prefered to recieve their holiday pay instead.
I do not believe this is breaking any employment laws, and I feel this maintians a good relationship with your employees, leaveing the employee feeling you are approachable and sympathetic to future issues they may have, especially in todays post recession climate.

Welcome David, good idea to keep it simple and gotto break it down into separate issues :

Sick note two weeks - early reutrn requires 'return to work' meeting & risk assessment prior return - sounds too late for that tho.........

With regard to holiday taken whilst on sick leave it could be argued to be different from a pre-arranged / booked holiday that the individual falls ill during and not the other way around !

If pre-booked, in advance of an un-predicted illness and not 'knowingly' or obviously contrived one would just have to accept that not down to but down to EU regulation on sickness during holiday allowances so others just gonna have to suck it up as it is life and by and large it ain't fair & that's that.

Good luck.

I recently had to look into a similar set of circumstances and it appears recent case law (I would have to dig it out) determined that sick days during a leave period discounted the leave days. In other words three days leave would be put back onto their "card" as it were. On the other hand where a staff member does not take their full leave entitlement the employer does not have to recompense this - i.e. take it or lose it policy. It is a difficult one this because coming back to work appers to be the "hero" thing but behind it may lay other less noble motives. A lot will depend on the character of the individual, are they a hero, or from past experience you are just waiting for them to pull this stunt again. One other point "...they were told they should really be at home" raises the question who is saying that, the DR, OH, or staff members in light of discomfort they are exhibiting at work. It's all evidence should it be needed, though hopefully they would respond to a reasonable manager intervention.

Hi Dave, depends on how considerate your company is really, our company will let you reclaim the holiday if you provide evidence of being ill, bit difficult if you are self cert but none the less if you are ill and have holiday booked you will need to go to the GP and obtain evidence. We have a policy on this so it is clear to all staff where they stand. If you have no current policy I guess it is up to the discretion of the business. As for ill feeling in the office it should be a matter between the business and the individual and kept that way but i do understand in some small environments everyone knows everyones business. In this case you will have to apply the rule to all and hopefully have faith that they all stay healthy when away on leave!!

Wonder if someone could help. A member of staff recently handed over a two week sick note for back pain. After one week they returned to work despite being told that they should really be at home.
While this is seemingly straightforward, they had also put in for 3 days holiday during the first week of their sick leave. The question is, does the fact that they came back to work half way through a sick period negate the sick note and should they then lose their holidays. Or are they still entitled to the 3 days holiday they should (did) take while on sick leave? I thought this would be a simple question to ask but it does sound very complicated.
The bottom line is if this person is allowed the 3 days holiday again I can see this causing a lot of ill feeling in the office. Hope someone can help
Dave

Thank you everybody for your replies - Carole I said exactly the same, I'd refuse to answer the door. And then what if you were out at the doctor's surgery or the hospital, would you then be accused of not actually being sick because you weren't at home?!

Julian, exactly - for a company who is trying to save money wherever they can this seems to contradict everything.

Martin, this is what I thought, it could be seen as harrassment and Dave a very true comment!

Thanks again, it's good to see other people's perspective on this issue.

We had this discussion where I worked previously and the view was that if we turned up on the doorstep of someone who was sick it could be seen as harrassment as it was 'management' turning up to pressurise an employee into returning to work.

Also if the sickness was work related stress the last thing you would want is someone from the place that was making you ill turning up on your doorstep.

Sounds like the quickest way to spread swine flu to the whole of the business.

As an employee of a company who sent a manager knocking on my door on a day that I was ill in bed with a stomach bug or flu with a raging temperature, I would be pretty mad and probably not even answer the door! Its complete madness when you can self certificate for the first 3 days of an illness for the vast majority of companies and 7 days before you need a SP3. In addition if you have had an accident or need to see a GP then sending a manager to your home will probably be a complete waste of time because nobody would be there anyway.

I agree in certain circumstances an early visit may be appropriate in very specific occasions but not as a general rule.

Talk about nanny state. My sons company does not pay for the first three days of illness so if that is not a deterrent to make those think twice who feel like taking the odd day off then I dont know what is.

Clearly this is some knee jerk reaction to bad absenteeism figures and senior management understandably want to do something about it, but honestly that is childish, costly, time wasting and totally ridiculous. They need to start looking at their policies and see what the problem is or if they dont have any set some up.

As a policy this is unlikely to be cost-effective, but there may be circumstances where an early visit is appropriate. It is not 'illegal' as a policy, and many would argue that home visits are best practice where the employee cannot come into the workplace for a meeting. If the employee has stated that they do not want the manager to visit, this would be a different issue, but it would reflect a pretty serious breakdown in their relationship.