Employers and their staff must make preparations and know their rights now employees are able to self-certify sickness for up to 28 days under a temporary rule that came into effect on the 17^th December 2021, but will apply to periods of sick leave from the 10^th December.  The temporary measure ends on the 26^th January 2022.

Employees can normally only self-certify for the first seven days of absence, but the temporary new rules have been brought in to reduce pressure on GPs during the COVID-19 pandemic and are in effect for all employees in England, Scotland, and Wales.

This relates to all absences as a result of illnesses, not just covid.

However, covid will no doubt be at the forefront of an employer’s mind.

While the change may present business continuity challenges, employers can ask for proof of a positive PCR test from an employee claiming to have coronavirus.

Kerry Hudson, Employment Solicitor says: “Some managers may feel uncomfortable asking for evidence of a positive PCR test but I consider are well within their rights to do so, not least to be able to take steps in the employees workplace such as deep cleaning their work station.

The sad fact is some employees may exploit the epidemic as an opportunity to take paid time away from the workplace or desk. By requesting evidence of a positive test, managers can reduce this risk and deter similar behaviour and simply having a policy that applies to everyone will assist.  It’s important to make sure this applies to everyone, so no one considers they are being singled out.”

In some circumstances, employers may offer you a private referral and treatment such physiotherapy or other types of occupational therapy, in fact, some contracts of employment give employers the right to ask you attend upon a referral such as to occupational therapist to comments on your fitness to work.

Kerry says: “Employers should discuss any changes that might help the employee return to work such as different/phased hours or reduced duties.

Employees must also be mindful that, unless there is an enhanced company sickness policy in their contract, they will still only be entitled to statutory sick pay.”

Depending on the reason for absence it will also affect when you become eligible, for example if  self-isolating because you are suffering from covid, you may get SSP from the first day, if your absence is not related to covid, it will be from day 4.

Some firms recently have amended their sick pay polices such as Morrison’s, who will only pay enhanced sick pay to those off suffering from covid who have had their vaccine, whereas those who have not had the vaccine will be entitled to SSP only.

She also reminds employees, having had enquiries from employees who have been absent from work on sick leave, but then posted pictures of themselves on social media which have been used against them in disciplinary proceedings if the employer considers the posts depict a different account to the employees’ health that they are declaring, that this is not a breach of GDPR or invasion of private life – the posts are on social media platforms

The changes have been implemented to free up health professionals to focus on the vaccine booster programme and emergency care.

According to the GOV.UK website; “Employees must give their employer a doctor’s ‘fit note’ (sometimes called a ‘sick note’) if they’ve been ill for more than 28 days in a row and have taken sick leave.

This includes non-working days, such as weekends and bank holidays.

If they started their sick leave before 10 December 2021, they must give proof if they’ve been off work for more than 7 days, including non-working days.

If employees are self-isolating and cannot work because of coronavirus they can get an ‘isolation note’ online from NHS 111.”

The rules will revert back on 26 January 2022 but there is a possibility the temporary rules could be extended if the health system is still under pressure.

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Firstly, an employer must note that Holiday is payable to all employees and workers.

Following the case of Stringer it was established that even if an employee is absent from work due to illness they remain an employee and therefore they continue to accrue holiday in the normal manner; they will be entitled to use such holiday when they return to work in the normal manner.

Last year the case of Pereda -v- Madrid Movilidad SA further expanded rights in respect of annual leave. In this case the question arose as to what happens when an individual has booked annual leave and then becomes unwell during that period. The facts of the case were slightly unusual in that the holiday that the individual had booked was in fact a period of factory shutdown and the illness was of a serious on-going nature which arose before the shutdown and continued for all but one day of the shutdown period. The ECJ has ruled that where this occurs an individual should still be entitled to take their annual leave at a time when they are well enough to reap the benefit of it. In practice that means that employees and workers will not forfeit their annual leave when they are unwell, instead they will be able to defer their annual leave and take it at a later date, irrespective of whether such holiday is normally to be taken at a fixed time. The idea behind this is that there needs to be differentiation between the sick leave (which is to recover from an illness), and annual leave (which is a period of rest and recuperation).

So having established that any holiday which coincided with a period of sick leave would have to be credited back to an individual, the next question arises as to when that can be taken. For most, it would have to be within the present holiday year, and if it’s not used then it is lost. Unfortunately following KHS AG v Schulte where illness prevents it from being used such annual leave has to be carried over into the new-year when they can take the benefit of it. However a reasonable long stop date for its use can be imposed.

Unfortunately, the case law does not end there. Until recently the decision in Pereda had been distinguishable to suggest that only sickness which started before the period of annual leave, and which was sufficiently serious could result in the crediting back of annual leave to an individual. However, a further decision by the European Courts has further hindered employers; in ANGED V FASGA it has been held that the nature of the illness and the time that the employee became sick are irrelevant; any sickness now accruing during a period of holiday should result in the holiday being credited back to the Employee.

In a nutshell, what should this mean for employers?

The practical implication of the above cases means that Employers need to be pro-active in the management of employee absences.

However, Employers should remember that they already have some rather useful weapons in their armoury to combat the abuse of the present law; for example,

1. the Employer should consider including a discretionary right to sick pay; the non payment of wages may deter employees simply seeking to take advantage of provisions and gain extra holiday and;
2. the existing sick leave arrangements; In order that the employees should benefit from being able to take sick leave instead of holiday they should still comply with the existing policies and notification requirements – and such should be included in a well drafted clause in a staff handbook. For those employees who decide after the event that they will try to claw back their holiday on the basis that they were “sick”, this will certainly throw a spanner in the works.
3. A further option to consider is whether a policy is included to contains a reference to employee’s being able to attend work, but for their illness; clearly this is aimed more at preventing employees from seeking to reclaim a day or two’s holiday where they are abroad and would not otherwise have been able to attend work. Whilst this has not been tested before a Court, it may still be worth including as a deterrent rather than an expressly useful provision.
4. In addition, you may have a clause in the contracts of employment that states that credit will be given where medical evidence is provided; again it is likely to cause the “chancers” some difficulty and they are unlikely to want to be put through such an ordeal.

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