Medical Capability & Sickness Absence – Your Questions Answered

Home HR Medical Capability & Sickness Absence – Your Questions Answered
sickness absence

Despite companies reporting reductions in the rates of sickness absence during the pandemic, sickness absence continues to cost employers a significant amount in terms of sick pay and lost time.

Absenteeism, both in the long and short term, also represents a significant portion of the queries presented to us here at Avensure. Therefore, Avensure ran a client training webinar on medical capability and sickness absence earlier this year. In this article we look at the key questions posed by some of our clients who attended that webinar.

  1. Is there a summary of the rules regarding Statutory Sick Pay (SSP)?
  • The rate of SSP in 2021 £96.35 per week
  • SSP is payable for 28 weeks
  • There is no qualifying service required, although the employee must have done some work for the employer.
  • Payable to those who earn above the lower earnings limit of £120 per week (2021 rate)- based on average earnings over the past 8 weeks.
  • Payable only after 4 continuous days of sickness absence
  • First 3 days are unpaid ‘waiting days’
  1. Are waiting days unpaid if there is a company sick pay policy in place?

If you have a company sick pay scheme, usually this is payable from day one of absence. Waiting days only apply to the payment of SSP.

  1. Are the 4 continuous days of sickness absence the employee’s shifts on their own rota or continuous days? How is SSP paid for part-time employees, for example someone working 3 days per week?

The SSP is payable from the fourth day the employee is off sick. SSP is only payable on ‘qualifying days’ which are the days the employee would normally have been expected to work but cannot work due to being ill.

Therefore, an employee would not be classed as being off sick for 5 days if they are only contractually required to work 3 days per week.

Employees will be entitled to the full rate of SSP, whether they work 3 days a week or 5.

  1. If someone is on annual leave from work, is it true that with a medical certificate they can reclaim their annual leave as they were unwell?

Sickness will supersede the annual leave. So, they will be entitled to cancel any annual leave due to sickness and be allowed to take it at another time, unless the employee wants to remain on annual leave.

It is better to agree this at the start of someone’s absence rather than waiting until they return to work.

  1. Does a medical certificate have to be signed to be valid and if not, how do you ascertain if it is genuine?

Medical certificates, such as a fit note issued by a GP, should always be signed.

If you do have concerns about the validity of the document, you can contact the person who is purportedly responsible for issuing it (in this case the GP practice) and ask for it to be verified.

Medical information will not be provided to you, but they should be able to confirm if the document is genuine or not.

  1. Do employees have to share COVID-19 test results?

You can never insist on employees disclosing confidential medical information, which a COVID-19 test result is technically.

However, during a pandemic and where the employer is carrying out the test, it would be reasonable for the employer to ask the employee to confirm their result, especially if it is positive.

You must ensure that any results are appropriately recorded and stored in accordance with General Data Protection Regulations (GDPR).

  1. Recently we’ve challenged a couple of employees regarding issues which will later lead to a disciplinary process being followed. However, they have immediately gone off with work related stress. I think this is 100% a direct ‘well you’ve told me I’ve done something wrong; I don’t like it; I’m going off sick’. This is so very frustrating. What can be done?

I agree that this is very frustrating. In this instance though it is reasonable for the employer to conclude that the work-related stress (assuming the employee has not raised another work-related dispute) is related to the pending disciplinary action and/or ongoing investigation. Therefore, to alleviate that stress, it would be prudent to conclude the disciplinary as swiftly as possible.

So, whilst disciplinary hearings should normally be placed on hold in the event of employee sickness, there may be instances such as this where the employer can proceed. This will depend on the circumstances and advice should be taken.

  1. Have you got templates for recording return to work meetings?

Yes, we do. Please contact the advice line and we can talk you through it and provide documents to assist you.

  1. Is it appropriate to record employee phone calls for reporting sickness?

If you’re intending to record phone calls/voicemails, then employees need to know you are doing this and the reason why calls are being recorded.

This is sensitive personal data so must be stored and recorded in line with general data protection regulations (GDPR).

  1. Is a return to work interview required after self-isolation or COVID-19?

I would advise a return-to-work interview after all types of sickness/medical related absences, including COVID-19 related absences.

  1. I have a member of staff who is absent due to sickness, but I know from Facebook she has been out for meals and in bars in Manchester, is she still entitled to SSP?

Employees are not house-bound when off sick, however employees do have a duty to do all they can to keep themselves well and take their time off sick to recover from their sickness.

It can be tricky to prove that their sickness is not genuine because they have been seen out socialising.

A recent piece of case law shone a rather surprising light on this very subject, which we covered in our article in July (read more).

  1. What kind of evidence can/is it appropriate to ask for if an employee notifies you of a potential disability?

If someone has a condition classed as a disability, or develops one during their employment, it is advisable for you to speak with them to get as much information as possible.

The purpose of this is to establish if they have any specific needs or if any adjustments are required. It is also advisable if in the event they are taken ill at work so that you are aware of any underlying conditions and any medication they may be taking.

You could also seek advice on conducting a risk assessment and/or refer them to occupational health, not to verify their condition necessarily but to assist you in ensuring that you have made any reasonable adjustments to support them to carry out their role.

  1. Can you request a medical report for an employee with a condition classed as a disability who has not been off sick, but is not able to carry out their role properly?

Yes. If someone is not able to carry out the full spectrum of their duties, you will need to seek some medical steer (with their consent) to establish if any reasonable adjustments can be made.

  1. If someone is dismissed due to ill health and their statutory notice is more than the contractual notice, which is honoured?

The notice you honour is the notice provision which is the highest. So, if the statutory notice is greater than the contractual, you would honour the statutory notice.

Statutory notice is one week per completed year of service to a maximum of 12. For example, someone with 6 years’ service is entitled to 6 weeks’ notice.

  1. Are there any specific rules regarding notice if someone is dismissed for medical reasons taking account of the fact they cannot work their notice?

If the employee’s contractual notice is more than one week greater than their statutory notice, they are still entitled to be given their contractual notice, but they will not be entitled to pay during their notice period.

For example, if someone has two years’ service, but their contract entitles them to one months’ notice, their contractual notice is more than a week greater than the statutory notice- which is 2 weeks.

Therefore, their end of employment date will be a month hence, but they will not be paid during their notice period, unless they have any remaining SSP or contractual sick pay left.

And finally…. for details of our upcoming webinars and live training events, please contact us at

Next week- We explore cost effective alternatives to redundancy.

author avatar
Elena Boura