LRD Booklets June 2015

Sickness absence and sick pay - a guide for trade union reps

Introduction

Introduction

[pages 3-4]

None of us knows when we might need the support of a good sick pay scheme and a fair absence management policy. The issue brings together an element most unionised employers expect to bargain over — pay — and another element that they may be less willing to negotiate — management procedures.

During the economic downturn most negotiators have struggled to secure real pay rises, and maintaining or improving sick pay has been a real challenge. There has been growing pressure on sick and disabled workers in the public sector from government cuts, while many of the newly created private sector jobs are low-paying and precarious, with a “floor” set by the minimum wage and statutory sick pay (SSP) all that is on offer.

Nevertheless, wherever unions are present in the workplace and where employers are sufficiently motivated, protection for employees unable to work for health-related reasons will always be high on the agenda. Government initiatives like the now well established Fit Note and the much more recent Fit for Work review scheme may bring new opportunities to discuss health at work, while growing recognition of mental health as a workplace issue may make it easier to manage one of the top causes of long-term sickness absence — stress.

This LRD booklet breaks down the challenges of negotiating and representing members on sickness absence into five areas:

Chapter 1: Current approaches to sickness absence. Despite a long-term decline in sickness absence, a rising problem of presenteeism, and growing recognition of the problems of mental health and stress, the government and employers continue to look for ways of reducing long-term and short-term absence in the public and private sectors.

Chapter 2: Developing absence management. Employer duties on employee health and safety continue to provide a general legal framework for handling sickness absence but the quality of management procedures at workplace level is key. Employers have had to adapt to the Conservative-led coalition government’s initiatives in this field, from the 2010 Fit Note regime to the Fit for Work scheme now being rolled out.

Chapter 3: Specific legal rights and protections. The evolving legal framework provides additional protections for sick and disabled employees in a range of circumstances, in particular, the Equality Act 2010 which consolidated previously separate laws designed to curb discrimination in a number of areas. Other aspects of the employment law framework, for example, on the entitlement to paid holiday, can help workers affected by health problems too.

Chapter 4: Sickness absence and pay. A worker’s ability to maintain regular income during periods of absence from work due to sickness or disability is a key employment right. The statutory benefit framework, in particular Statutory Sick Pay and Employment and Support Allowance, provides an important but non-the-less minimal level of support, well below the value even of the National Minimum Wage. Negotiated or “voluntary” occupational sick pay (OSP) therefore has an important role to play, subject to any limitations or deductions that the employer’s scheme entails.

Chapter 5: Sickness absence and dismissal. Sickness absence can lead to dismissal, even where there is medical evidence of ill health or disability. It may fall to the tribunals and courts to judge the reasonableness and legality of the employer’s actions and case law in this area is an important part of the trade union armoury.

The booklet refers to sick pay and absence procedures in a variety of workplaces, as reported in Workplace Report or drawn from the LRD Payline database. Legal cases are referenced by name and where they can be looked up, either in Industrial Relations Law Reports (IRLR) published by LexisNexis Butterworths (www.butterworths.com) or the British and Irish Legal Information Institute (www.bailii.org).

Employment Appeals Tribunal (EAT) cases can be found at: www.gov.uk/appeal-employment-appeal-tribunal/legislation-and-previous-decisions.

Court of Appeal cases can be found at: www.judiciary.gov.uk/court/court-of-appeal.

Court of Justice of the European Union/European Court of Justice cases can be found at http://europa.eu/eu-law/case-law/index_en.htm