Most people tend to underuse rather than overuse their paid sick leave, which is 10 days a year for most employees. But occasionally, employers have to deal with workers who misuse or abuse their sick leave entitlements to the point that it starts to have a real impact on the business.
So, what are your obligations as an employer around sick leave, and what should you do if you suspect someone is abusing their sick leave provisions? Let’s explore the issue.
In this post we explain:
Most employees are entitled to 10 days of paid sick leave each year, which they can take if they, their partner, or someone who depends on them (like a child, or an elderly parent) is sick or injured.
Employees become entitled to sick leave once they’ve met these eligibility requirements:
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.
Sick leave abuse occurs when an employee takes sick leave dishonestly, or for reasons unrelated to illness or injury.
Examples of sick leave abuse may include:
Dealing with a team member who is taking lots of sick leave can take some patience and tact, but it’s important to give them the benefit of the doubt and start from a position of helping the person manage anything that might be going on.
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.
You’ll need to record when other leave is used instead of sick leave - this ensures that their pay is processed correctly, and it also 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.
Employers can request medical evidence (at the employee’s cost) when:
The employer can request medical evidence (at the employer’s cost) for 1 or 2 days of absence.
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.
If you have reason to believe an employee has been abusing their entitlement to sick leave - e.g. they have taken sick leave and been seen in a situation that indicates they are not sick or injured, or they have falsified proof of sickness or refuse to provide it - you could consider taking disciplinary action.
As we said above, we recommend taking a more informal approach initially, starting with a casual conversation to find out if there are wider issues at play.
If you decide to take disciplinary action, you must ensure the process you follow is fair and reasonable. This means:
You may decide to not take any action (if the employee had a reasonable explanation or the allegations weren’t substantiated) or issue them with either a formal or a final warning, depending on the circumstances.
If the issue amounts to serious misconduct, you could move to dismiss the employee, however, case law has established that you will need a very high standard of evidence (given the seriousness of the allegation).
In certain circumstances, if an employee has been away from work on sick leave for an extended period and you can no longer reasonably sustain their absence, you may be able to dismiss them for medical incapacity (also known as medical termination). As with any formal employment process, you need to act in good faith and not rush to judgement.
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:
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 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.
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 there to “top up” annual or other types of leave.
Again, if you suspect an employee is misusing sick leave, we recommend taking an informal approach in the first instance. If the issue persists, examine the pattern of the sick leave. Here are a few common patterns of absence that may indicate an employee abusing their sick leave entitlements:
These patterns could be a coincidence, but they may be a concern. If you have concerns, 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).
In certain cases, it may be appropriate to contact an employee’s doctor for clarity on how to support their medical condition (note: you will need the employee’s consent first).
As we discussed, if you have valid evidence that an employee has taken sick leave for non-genuine reasons, you could take formal disciplinary action or begin the process for medical termination.
In certain, exceptional circumstances, you may have legal grounds to dismiss an employee for serious misconduct, but you will need a very high level of proof and follow fair and reasonable process throughout.
If you are having difficulty with employees taking too much sick leave, please get in touch with MyHR.