Fit note changes: Proving employee sickness  

A change in the law from 1 July 2022 increases opportunities for employees to be signed off work when sick. Nurses, occupational therapists, pharmacists and physiotherapists can now sign statements of fitness for work, also known as a GP fit note. This change has been brought in to ease the burden on GPs.

But what might this mean for employers who suspect that a worker is exaggerating their condition for some reason: perhaps to avoid performance management or disciplinary hearings, or to take advantage of contractual sick pay?

The warning to employers from recent tribunal cases is not to make negative assumptions about an employee’s state of health without proper investigation first. In the case of Singh v Metroline West Ltd, Mr Singh succeeded with his claim for constructive dismissal after Metroline withheld his contractual sick pay.

Mr Singh was signed off sick following an invitation to a disciplinary meeting. Metroline believed that he was trying to avoid the hearing and so put him on SSP instead. There was a clause in Mr Singh’s employment contract that allowed Metroline to withhold company sick pay if, following an investigation, his absence was found not to be genuine.

The mistake Metroline made was failing to carry out that investigation which meant they were in breach of Mr Singh’s contract.

The question for the tribunal was whether Metroline’s breach was so serious that it went to the root of the employment contract entitling Mr Singh to resign?

Metroline tried defending Mr Singh’s constructive dismissal claim by saying that it withheld his contractual sick pay to encourage his participation in the disciplinary process.

This argument was rejected by the Employment Appeal Tribunal (EAT) who decided in favour of Mr Singh. The EAT held that Metroline’s decision to withhold his contractual sick pay caused a substantial reduction in Mr Singh’s earnings and was therefore a fundamental breach of his contract. He claim for claim was constructive dismissal was made out.

Metroline may not have lost this breach of contract claim if they had carried out that investigation into whether Mr Singh’s sickness absence was genuine. That said, making judgements about an employee’s state of health and their fitness to carry out their role also carries risks and complications for the employer, especially where there is a potential disability issue.

That is the subject for a separate legal update on sickness absence and capability procedures. In the meantime, employers should consider taking legal advice before trying to withhold either contractual or statutory sick pay because they suspect the sickness is not genuine. Our team of employment lawyers are on hand to help.