Most people tend to underuse rather than overuse their entitlement to paid sick leave - 10 days a year for most employees. But occasionally, employers have to deal with people who request or use so much sick leave it starts to have a real impact on the business.
So, what should you do if you suspect someone is abusing sick leave provisions? Let’s explore the issue.
A quick look at paid sick leave entitlements
Most employees are entitled to 10 days of paid sick leave each year, which they can take if they, a partner, dependent child, or other person who depends on them is sick or injured.
Employees have to meet these eligibility requirements:
- Permanent employees (full-time or part-time) - once they have worked continuously for the same employer for 6 months.
- Casual employees - once they have worked for the employer for 6 months for an average of 10 hours per week, and at least one hour in every week or 40 hours in every month.
- Independent contractors are not entitled to paid sick leave.
Unused sick leave can accrue to a maximum of 20 days, and employers can offer or agree to better terms (e.g. more than 10 days' sick leave a year or a higher cap than 20 days), but can’t provide less than these legal minimums.
Learn more about employee sick leave entitlements.
Managing people who take a lot of sick leave
Dealing with a team member who is taking lots of sick leave can take some patience and tact, but it’s important to start from a position of helping the person manage anything that might be going on, rather than mistrust.
Under the Holidays Act, employees are required to notify the business that they intend to take sick leave as soon as they can - either before they’re due to start work or if that isn’t practicable, as soon as possible afterwards.
If an employee wants to take sick leave but has no days remaining, the employer and employee can agree to either use annual leave (if available), take leave without pay, or provide sick leave in advance.
We recommend recording when other leave is used instead of sick leave - this helps to build a case should it become an issue as well as supporting you in managing the employee’s overall wellbeing.
You shouldn’t decline a sick leave request or require (or knowingly allow) anyone to work while they’re sick, whether that’s at the workplace or remotely.
Asking for proof of sickness
Employers have the right to request employees on sick leave provide proof of illness or injury if they have been unwell for 3 consecutive calendar days (this includes weekends). Proof is usually a medical certificate from a doctor, nurse, or other registered health professional.
You may also request proof if the person has been sick for less than 3 days in a row, but you’ll have to meet the costs of them getting proof, e.g. a doctor’s visit.
If the person refuses to provide evidence of illness (or falsifies the proof), you could consider taking disciplinary action to address their behaviour. However, we recommend taking a more informal approach initially, to work with the person to see what’s going on and find solutions.
If the person has been using a lot of sick (or other) leave, there might be wider problems to consider, e.g. low engagement, bullying or personality clashes, health issues, or other concerns outside work.
This is where open, honest communication and supporting the person helps. Explain how their absence is impacting the business but also try to understand what is going on for them. They may benefit from the help of your organisation’s Employee Assistance Programme (if you have one) or other form of counselling.
Can I fire someone for taking too much sick leave?
Employers aren’t obliged to keep an employee’s position open indefinitely and may have grounds to terminate the employment relationship if the person is no longer able to do their job because of serious illness or injury.
This is known as medical termination (or termination due to medical incapacity) and as with any dismissal, you need to act in good faith and follow a thorough process.
It’s not a disciplinary matter - it’s no fault of the employee, after all - and depends on the person’s circumstances. You need to balance the needs of the business with fairness to the person. Here are the key steps before you make a decision on ending their employment:
- Give the person a “reasonable” time to recover (case law has established that an absence of 12 weeks is generally long enough for a business to reasonably dismiss someone for medical incapacity).
- Conduct a fair enquiry into the person’s medical situation and prognosis, and their ongoing needs (it is not your place to determine how a person should recuperate).
- Notify the employee of the possibility of termination.
- Give them an opportunity to provide feedback and take it into account.
- Explore options for temporary cover, alternative duties, or work arrangements, e.g. working from home, staggering their return to work.
- Consider the employee’s length of service and whether the job or business contributed to the injury/sickness.
Be sure to also check what is stipulated in the person’s employment agreement and what might be detailed in any company policies, e.g. rehabilitation and return to work policy.
If the person has an existing medical issue that they failed to disclose when you hired them, you may have other disciplinary action avenues available to you. However, it is important to note that it is up to the employee (or candidate) to decide whether or not their medical situation will negatively affect their work.
For example, if they didn’t disclose an anxiety disorder because it is being actively managed and they didn't believe the duties of the role would impact their condition, your options for disciplinary action may be limited.
Faking illness or pulling “sickies”
Regularly taking sick leave that appears to be dubious or dishonest can put real strain on an employment relationship. Sick leave is a provision for employees to use when needed, but it is not a way to augment annual or other forms of leave.
Again, if you suspect an employee is misusing sick leave, we recommend taking an informal approach in the first instance. Start with a casual conversation to find out if there are wider issues at play.
If the issue persists, examine the pattern of the sick leave. A common example for someone who works Monday to Friday is taking sick leave either side of the weekend. This could be a coincidence, but it may be a concern.
Raise the pattern with the employee and then consider putting other measures in place, e.g. explore potential shift changes or work from home arrangements, or require the employee to get a medical certificate for every instance of sick leave (remember your payment obligations).
You can also talk to MyHR about whether it’s appropriate to contact the employee’s doctor for clarity on how to support their condition (note: you will need the employee’s consent first).
If you have valid evidence that the employee has taken sick leave for non-genuine reasons, you could then take formal disciplinary action or begin the process for medical termination.
In certain, exceptional circumstances, the organisation may have legal grounds to dismiss an employee for serious misconduct, but case law has established that you will need a very high standard of evidence (given the seriousness of the allegation) and follow fair and reasonable process throughout.
If you are having difficulty with employees taking too much sick leave, please contact MyHR.
