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Sickness absence and swine flu seminar


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Blake Lapthorn solicitors' Employment law team held a seminar on sickness absence and swine flu during September 2009.

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Sickness absence and swine flu seminar

  1. 1. Thames Valley HR forum - sickness absence and swine flu: guidance for employers Jim Whiter Head of Employment law, Oxford 22 September 2009
  2. 2. Topics to be covered Swine flu: guidance for employers Recent developments – Stringer -v- HMRC – fit notes Long-term ill health and dismissal – a reminder Case study © Blake Lapthorn 2009
  3. 3. Swine flu: health and safety Employers’ common law duty: includes obligations to provide a safe place of work and to protect employees from unnecessary risk of injury HSWA 1974: – to secure the health, safety and welfare of persons at work – to protect persons against risks to health or safety arising out of or in connection with the activities of persons at work Vulnerable staff: specific duty to assess risks of pregnant women © Blake Lapthorn 2009
  4. 4. Swine flu: employees having or suspected of having the virus They should not be at work Paid in accordance with contract of employment Possible extension of self certification scheme to 14 days? Cannot insist on testing or vaccination. NHS guidance: employees should come into work unless they have flu like symptoms © Blake Lapthorn 2009
  5. 5. Swine flu: effect on others in the workplace Confidentiality? – should colleagues be told? Covering absence – homeworking? – changing duties or hours – contractual issues © Blake Lapthorn 2009
  6. 6. Swine flu: issues in relation to dependants ERA 1996 : employees have the right to take a reasonable amount of unpaid time off to care for or make arrangements in respect of dependants. Includes: – when a dependant falls ill – arranging for the provision of care for an ill dependant, or – time off because of the unexpected disruption or termination of arrangements for the care of a dependant Note, therefore, child doesn’t have to be ill. Employee could rely on this if a school or nursery is closed. What’s reasonable? – case by case © Blake Lapthorn 2009
  7. 7. Recent developments: Stringer -v- HMRC Employees on long-term sickness absence continue to accrue statutory annual leave Contractual leave exceeding the statutory minimum will not accrue Payment in lieu when employment ends Can you carry over unused holiday? ECJ says yes, WTR says no Review sickness policies. Employees should be encouraged to take annual leave whilst sick Particular problems in relation to PHI schemes © Blake Lapthorn 2009
  8. 8. Recent developments: fit notes Proposal from spring 2010 Three categories: – fit for work – not fit for work – may be fit for some work now May be fit for some work now – Doctor must describe the ‘functional effects’ of the illness/condition. Doctor can indicate appropriate arrangements to help the employee back to work (a phased return; altered hours; amended duties; and work place adaptations). Doctor’s recommendations not binding © Blake Lapthorn 2009
  9. 9. Managing long-term ill health Potentially fair reason for dismissal ACAS Code of Practice General considerations – ascertain true medical position – consult – consider alternatives © Blake Lapthorn 2009
  10. 10. Managing long-term ill health Disability discrimination: – includes where employer fails without justification to comply with duty to make reasonable adjustments Other factors: – nature, length and effect of illness – part and future likely service – important of job and feasibility of cover – effect of absence on colleagues – if worst health is require – health and safety risk – length of sick pay © Blake Lapthorn 2009
  11. 11. If you have questions on this or other related topics, please contact: Blake Lapthorn is an English law firm regulated by the Solicitors Regulation Authority under SRA number 448793 whose rules can be accessed via This presentation is protected by copyright and is not a substitute for detailed advice on specific transactions and problems and should not be taken as providing legal advice on any of the topics discussed. A full list of our partners is available on our website at or at any one of our offices © Blake Lapthorn 2009