Oct 1

Employees too sick to come to the office yet well enough to work from home…..sound familiar?!

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If one of your staff members phones in sick, they can self-certify for up to seven days. What this means in practice is there is no need for a doctor’s note, but you can ask them to fill out a form on their return to work explaining the reason why they were off.

If an employee is sick for longer than seven consecutive days, including non-working days, they will need a doctor’s note, also called a fit note. This will either say whether an employee is “fit to work” or “not fit to work”.

A sick employee is therefore one who is not working as a result of either self-certification or GP-certificated sickness. The starting point must be that a sick employee is someone who cannot carry out the duties of their work – if a person is too ill to attend the place of work then they are too ill to work per se.

Working from home is a privilege and not a right….

There is a tendency for employees to take the odd day or two as ‘working from home’ whilst they have a simple cold or possibly a more spurious excuse! This must be addressed within the workplace. Working from home is a privilege and not a right and it is not down to the employee to decide unilaterally that they are going to work from home for a day! An employee working from home must be for a genuine reason, must be agreed in advance and must be as productive via email and phone and as available as if they were in the office.

Genuine reasons to work from home…

However, there may be circumstances when it is appropriate to work from home when sick – for example, it may be possible to feel too ill to get into the workplace but feel fit enough to sit in front of a computer and work.

A blanket policy that states that if you are too sick to come in then you do not work may be the way forward for some employers in certain industries where home working is impossible. Some companies may be able to take a more flexible approach and judge each case individually – for example if someone has broken a limb they may be able to work from home, whereas if someone is seriously ill with a virus or off with mental illness they are likely to be advised not to work whether at home or in the office.

In the age of technology it is understandable that some people within reason will wish to keep on top of their work. In these instances, where the employer has sanctioned working from home, a note will be made that they were working from home with approval and whilst sick and thus lower productivity may be expected. It is never the employee’s sole decision that they shall work from home for health reasons!

On the basis that the employer has imposed a clear policy that working from home is not just a ‘given’ at the whim of an employee, when might you want to work from home whilst off sick?

There are three main reasons why you might work from home whilst off sick:

• The fit note provides options for you to continue working in a different capacity (ie. from home) instead of going off sick entirely.
• Working from home may be used as part of a rehabilitation programme and as a preliminary step towards you returning to work after an accident or illness.
• As part of a ‘reasonable adjustment’ under the Equality Act 2010 when it has been agreed that working from home is necessary.

What are the responsibilities of employer and employee when working from home whilst off sick?

The employer’s and employee’s obligations under health and safety legislation continue to apply even if you are working from home. Both employer and employee should ensure that working from home meets the law with regard to the workstation and its positioning in the home.

The employer also needs to consider whether the employee shall be sufficiently productive to attract full pay or whether working from home will be on a part time basis and salary is made up using SSP or any company sick pay scheme. All these aspects should be discussed before commencing home working.

If you are working from home during a period of illness, you should be monitored and supervised and a plan should be drawn up aimed at increasing your attendance at work (if this forms part of the rehabilitation programme). Your employer will need to cover the cost of supplies such as printing, broadband, paper, telephone charges.

Presenteeism…..how to deal with employees who insist on working when signed off sick?

Employees may still be signed off sick by their GP but want to return to work whether for financial reasons (if there is no company sick pay) or simply because they are conscientious and keen to keep on top of their workload.

Office workers are easy to regulate. However, regular home workers may be more difficult to monitor. If you find they are working while they are signed off, either through their own volition or through the tacit consent of a manager, you may want to ensure this stops until they are fully recovered and speak to both employee and manager to make it clear they should not be working.

For both office and home workers you may wish to specify that, if they are signed off by a doctor they are off sick and should not work under any circumstances – whether from home or from the office. From an insurance perspective if you continue to allow an employee to work while signed off it could represent a breach of your duty of care as an employer and could make you liable for further damage an employee suffers if they continue to work whilst sick.

If you want any advice at all please email me at nicola.goodridge@goodhr.co.uk.