Dec 2021
Sick absence updates
Some temporary regulations affecting sick absence were published on 16 December 2021 and came into force on 17 December 2021.
They affect the medical evidence which employees have to provide to employers in respect of periods of sick absence.
Under the regulations which have been in force since 1985 employees have been required to provide a Fitness for Work Statement from their GP in respect of any period of sick absence which lasts for longer than 7 days.
The new regulations change this requirement for a temporary period. The change applies only to periods of sick absence which begin during the period of 6.5 weeks between 11 December 2021 and 26 January 2022. In these cases employees are not required to obtain a Statement from their GP until the absence has lasted for longer than 28 days.
For any period of sick absence which begins on or after 27 January 2022, employees will once again be required to provide a GP Statement after the absence has lasted for more than 7 days.
The intention, it appears, is to relieve the pressure on GPs at a time when the NHS is being called upon to focus all its resources on the Covid vaccination booster campaign.
These temporary regulations will be inconsistent with the provisions in most contracts of employment. For the purposes of paying Statutory Sick Pay the regulations will have to be treated as varying the employment contract to the necessary extent so that, for example, an employer will be obliged to pay SSP to an employee who has an absence from work of 14 days beginning during the 6.5 week period, even though no GP Statement will be available. The employee can be required to provide a self-certificate on return to work.
An employer could in principle insist that an employee provides medical evidence from his GP as a condition of receiving contractual sick pay. Currently, most employers do not require medical evidence from a GP in respect of the first 7 days of absence as a condition of receiving contractual sick pay. An attempt by an employer to require medical evidence in respect of, say, a 14 day absence as a condition of paying contractual sick pay might well be challenged by an employee. The outcome of any such challenge would be likely to depend on the wording of the employment contract and on all the circumstances surrounding the sick absence.
The new temporary regulations appear to apply only where actual illness is the cause of an employee’s absence, and not to cases where an employee is deemed to be incapable of work under the various coronavirus-related regulations which have been introduced since March 2020.
If you have any questions arising from this note, please contact Keith Potter or the member of the Employment Team at Downs Solicitors LLP with whom you normally deal.
