Sick Leave Entitlements – The Basics, “Sickies” and Medical Incapacity - Frequently Asked Questions

Employers need to be knowledgeable around sick leave entitlements and how to minimise the impacts of staff absences on the business.  Staff absences due to illness increase at different times for a variety of reasons, most commonly during the winter months.  This article covers employer’s obligations and answers some frequently asked questions from employers.

Employer obligations

After six months of service, employees are entitled to 10 days sick leave per year.  Employees can accumulate their sick leave to 20 days, or more if the employer allows.  Employees are entitled to paid sick leave if they are sick or injured, or their spouse/partner/dependant is sick or injured.  A dependant is someone who regularly depends on the employee for care, and therefore it makes sense that the employee needs to take leave to look after them when they are sick (e.g. a child).

If an employee is sick, an employer should encourage them to stay home.  This is important for both the business, your affected employee and your other employees.  Your sick employee will recover more quickly and their absence/recovery will help prevent illness amongst your other employees.  You will generally find that your business will be more efficient when sick leave is properly taken, than if your employee continued to work through their illness.

Can my employee just work from home instead?

Even if working from home is an option in your line of work, we recommend encouraging your employees not to simply “work from home” if they are sick.  As a starting point, they should take time to rest and recover. 

Of course, there will be exceptions to this from time to time, but employers should keep health and wellbeing front of mind.  A good example of when this might work well for all parties is when the employee has taken sick leave for a few days, has effectively recovered but seems to have a lingering cough that does not bother the employee, but is distracting to others in the office.

What if my employee runs out of sick leave?

As an employer, there are several ways you can support your employee if they exhaust their sick leave entitlement, including:

• Providing additional sick leave
• Allowing them to take unpaid sick leave
• Allowing them to take sick leave in advance
• Allowing them to take leave without pay

We strongly advise against declining your employee’s leave if they have exhausted their sick leave entitlements.  Requiring an employee to come to work when they are sick or injured risks endangering the health and safety of the affected employee and those around them. 

Can I dismiss an employee if I believe they are using their sick leave improperly?

If you believe your employee is misusing their sick leave and that their illness is not genuine, your options are:

• Request a medical certificate for their absences
• Have an informal discussion to try and resolve the issue
• Commence a formal disciplinary process, if you have sufficient evidence

Whichever option you choose, we recommend treading carefully, having considered all the possibilities.  If you are making an allegation of dishonesty in relation to sick leave, clear evidence is required.  It is also not an employer’s place to determine how their employees should be recovering from illness – clear evidence is required from an employee undertaking an activity so inconsistent with recovery that the illness can be questioned.  Further, a fair and reasonable process must be carried out before any decisions are made regarding disciplinary action.  Such a process includes consulting with the employee, and we recommend reaching out to your lawyer to discuss this before taking any steps.

Can I dismiss an employee if they are genuinely sick, but their frequent absences are affecting my business?

While there is an obligation to act in good faith towards employees, an employer cannot be expected to infinitely hold open an employee’s job if they are unable to fulfill their role due to illness. 

In time, an employer may have no other option financially but to take steps towards terminating the employee for medical incapacity.  This process should never be approached lightly and significant care must be taken – this will be a difficult time for your employee. 

Procedurally, check the employment agreement for the process regarding medical incapacity, and reach out to your lawyer to minimise risk before carrying out the process.  The process for medical incapacity is complex at best, notwithstanding the emotional challenges this presents to your employee, and likely you as employer.  The process entails conducting a full and fair investigation into the employee’s medical state, including their current state, their prognosis and expected timeframes for full return to work. 

How many sick days do part-time employees get?

Part time employees are still entitled to 10 days sick leave once they have worked for you for six months.  Regardless of whether they only work one day or four days per week – sick leave entitlements are not pro-rated. 

How many sick days do casual employees get?

Casual employees are entitled to sick and bereavement leave after six months of working an average of 10 hours per week – comprised of at least one hour per week or 40 hours every month.  If you have a casual employee qualifying for sick leave, your casual employee may be considered “permanent” legally.  We recommend reaching out to your lawyer for clarification.

Going forward

Overall, the best advice we can give is to look after your employees.  If your employee is genuinely ill, consider what you can do to support and minimise the impacts on them. 

If you believe your employee is using their sick leave illegitimately, or you are unfortunately at the stage where a process for medical incapacity may be necessary, we recommend reaching out to our team to discuss options and assist you moving forward.  Any attempt to address matters relating to sick leave must be approached carefully and through a fair and reasonable process.

Employment law assistance

Our Workplace Law Team are able to assist with all employment processes and any other bespoke employment queries that you may have.  No query is too big or small.

Chantelle is a Senior Solicitor in our Workplace Law Team and can be contacted on 07 958 7473.