Most employers will have experienced occasions when they have had reason to doubt that an employee off sick is genuinely ill.  An all too frequent occurrence is the employee that goes off claiming ‘stress’ when disciplinary proceedings are imminent. A recent decision of the Employment Appeal Tribunal (EAT) has called into question how far employers can go in withholding sick pay from employees they consider to be ‘swinging the lead’.

The employer had an express contractual right to withhold sick pay if there was any doubt that an employee’s absence was for reasons other than health. An employee went off sick claiming stress immediately after a disagreement with her manager. Following a period of self-certification the employee submitted sick notes from her GP. The employer, relying on the contractual term, refused to pay sick pay believing that the employee had simply left work in a fit of pique at not having got her own way.

The EAT noted that the employer may have initially had grounds for doubting that the absence was genuinely on grounds of ill health but went on to hold that:

“Once the general practitioner had certified not only that the Claimant was suffering from acute stress reaction, but also that that was the cause of her absence from work, the initial doubt….was removed. Unless and until there was medical evidence to put that opinion in doubt, it was pellucidly clear.…Even if she was feeling piqued at not getting her own way, if that led to stress which in turn caused her absence, then she was entitled to sick pay, provided there was no doubt about that causative link. From the general practitioner’s certificate there was none.”

What does this mean for employers?

This case does not mean that you have to accept all sick notes. However, if you think that an employee is not genuinely ill, and the employee produces a GP’s sick note, you will need to obtain your own medical evidence in order to withhold any sick pay entitlement. This will necessarily mean incurring some cost which will not be recoverable. You will therefore need to undertake a balancing exercise, weighing up the cost and time of obtaining medical evidence against the likely duration of any absence and consequent cost of paying sick pay to the employee.

Making employee’s aware that sick notes may be challenged may serve to reduce the number of employees ‘trying it on’. Now might, therefore, be a good time to review your sick pay policies, and to make clear to employees that you will seek to obtain an independent medical opinion if there is any doubt as to whether an employee is genuinely ill.

Posted: October 16th, 2007 under Employment/HR.
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