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Dealing with illness and absence is part and parcel of running a business. Although commonplace, in a time where productivity and efficiency are everything, employers frequently try to push the boundaries to get the most out of their employees – even where they’re bed-bound.

When they are ill or unable to get into work, workers can feel under pressure from employers to work from home. Advancements in technology have increased connectivity and most can get on with some roles of their job from different locations. With all the necessary equipment, most employees can carry out certain responsibilities from the comfort of their own homes.

For employers, this is welcome news as it means staff can work at home when they need to look after children, are unable to make it into work through winter or have a handyman coming over. But what about when a member of staff is ill? Is it expected that they continue as normal?

What is sick leave?

In the UK, if an employee phones in sick, they can self-certificate for up to seven days. This involves filling in a form detailing symptoms upon their return to work. A doctor’s note is only needed if they are off for more than seven days in a row (including non-working days).

When the staff member in question is off work for longer than four weeks, this can be considered as long-term sick.

Should an employer make contact with an employee whilst off sick?

Making contact with an unwell employee is perfectly reasonable and can be beneficial for both parties. The phone call shouldn’t necessarily focus on work duties such as upcoming deadlines and updates on projects but should act as a chance to communicate how the employee is feeling and to get an update on their progress.

When the illness in question could be intensified by making contact (such as stress, depression and anxiety), if it isn’t necessary for communication to be made, the manager should act cautiously. If the communication causes distress by explaining work-related issues and problems, it could be seen as unreasonable behaviour and may be the focus of the employee claiming constructive dismissal.

Working from home when ill

Employers might think it is perfectly reasonable for employees to be too ill to get into the workplace but fit enough to work from a computer at home in certain situations. In the eyes of the law, however, this is jeopardising their necessary duty of care as an employer.

If an employee works from an office, when they are not fit enough to attend those premises then they are not fit to work anywhere else, including home. An employer certainly shouldn’t be encouraging their staff to work from home when ill.

From an insurance perspective, when an employee is deemed as unfit to fulfil the duties of their work (either through a doctor’s note or self-certification), they should not be made to work remotely as this could be seen as a breach to health of the employer’s duty of care. Subsequently, the employer could be liable for any further damage suffered as a result of working whilst sick.

Even if the employee feels well enough to work at home, doing so may hinder recovery.

Legalities of home working

The situation becomes more unclear if the employer operates an agreement with the employee to occasionally work from home. If the employee then makes the decision that they’d prefer to work from home as they are under the weather, they could do so.

However, remember that the employer is responsible for an employee’s health, safety and welfare. This means that risk assessments must be made at the start of the home working arrangement and be periodically ongoing.

The Health and Safety at Work Act 1974 applies even when staff work from home. So, it is good practice to get the designated health and safety officer to make inspections on the home working area to ensure that it complies. These aspects and more need to be discussed between the employer and employee before home working is commenced.

The employer will also need to cover the cost of supplies such as printing, broadband, paper, telephone charges, etc.

Sickness absence policy

It is recommended that companies have a thorough and comprehensive sickness absence policy. Within the policy, there should be guidelines about home working and illness. This way, everyone in the company knows what is expected and the company isn’t leaving themselves susceptible to failing to fulfil their duty of care.

The policy could be as simple as declaring if an employee phones in sick or is signed off by a doctor, they should not work under any circumstances.

The type of illness or injury will have an impact on whether working from home is appropriate. It will come down to the manager’s judgement of the scenario at hand. For example, if an employee is in the later stages of recovery from surgery, is willing to work and has the necessary equipment to support their role, the manager may give permission for home-working.

Employment solicitors Leicestershire

If you have a question about an employment law issue or are involved in a dispute about sick leave, we can help.

Bray & Bray has three main offices in Leicestershire, contact us to discuss an enquiry or a case you have or feel free to pop in and see us at your local office by clicking on the links below

Leicester call us on 0116 254 8871.

Hinckley call us on 01455 639 900.

Market Harborough call us on 01858 467 181.