We often get calls that go a bit like this.
“My employee has been absent from work for 5 weeks and is currently receiving SSP. We have since found out that she attended her son’s graduation ceremony last week. If she is fit to attend this, then surely she is fit to be back at work?”
As you might imagine, here the employer is raising genuine concerns as to whether it is right that an employee can be ‘out and about’ if unfit for work.
It can be extremely frustrating for both you as an employer and for other employees. On the other side of the coin, employees can also be worried about what they can do whilst off sick in order not to be at risk of a disciplinary action by their employer.
So how can you respond?
What you do next as an employer will very much depend on the reason for the employee’s absence, the nature of the work that they perform for you and how far the activity of going to a son’s graduation ceremony is perceived to be acceptable.
However, it is important to bear in mind that not all illnesses incapacitate a person to the extent that they need to stay in bed or remain at home.
In fact, there is no legal requirement for a worker to stay at home.
Furthermore, if your employee has been signed off work with stress or another mental health condition, engaging in activities such as their son’s graduation may indeed help them in their recovery.
This also applies when an employee who wants to go on holiday whilst absent from work. So long as the nature of the illness means they are fit to travel, but not fit for work, this should not be treated as a potential disciplinary matter.
Whilst you would accept the Statement of Fitness for Work provided by the employee at face value. If you have convincing evidence that their illness is not genuine or that their behaviour, e.g. attending an event such as a graduation ceremony risks aggravating their condition, you will need to investigate further.
It is important that you proceed with this investigation with caution and consider all the surrounding facts.
Where appropriate, you would seek to obtain medical opinion by referring to Occupational Health or seeking an employee’s permission to write to their GP or Consultant. Your investigation will need to be done extremely carefully or you risk breaching the implied duty of trust and confidence. Any potential disciplinary process will need to be conducted in accordance with the ACAS Code of Practice.
If we can assist with any such queries, please call us on 01527 909436.