If an employee is sick abroad, can I accept a foreign medical certificate?

It isn’t an uncommon occurrence for an employee to return from holiday, only to claim to be ill and be delayed in returning to work. If the employee returns and presents a foreign medical certificate as evidence of their sickness, you should treat it as legitimate unless you have evidence that it is not, or evidence that the employee is not really sick. In this article, our Employment Law team detail what you should do if an employee is sick during their holiday and requests the time off be considered as sickness absence and not annual leave, as well as where you stand in regards to Statutory Sick Pay.

Do I have to pay Statutory Sick Pay?

Employees who fall sick abroad have the right to be paid sick pay instead of holiday for this period.  In order to do so, your employee must comply with your sickness absence reporting procedures. This may be to phone in and explain the reason for their sickness and it could even be on every day of absence. If you accept this, then the employee will be entitled to receive their holiday back to take at a different time.

In this example, your employee will also be entitled to be paid at least Statutory Sick Pay for the period of absence. However, if you have a contractual obligation to pay full pay, then your employee will be entitled to this in accordance with your policy.  Normally, employees do not need to provide medical evidence of incapacity until they have been absent for seven days.

What can I do if I don’t believe they are really ill?

You should be careful not to assume automatically that any sickness absence is not genuine. However, you may have grounds to be suspicious about some employees; particularly if there have been instances of misuse of sickness reporting previously. If you are not sure whether or not the employee is telling the truth about their sickness, you are able to insist that the employee provides some form of evidence to support their given reason for absence. If this evidence is a foreign medical certificate, as the employer, you will have to fund the cost of obtaining this document.  

You should note absence patterns and ask the employee for an explanation. If you have a reasonable belief that the absence is not genuine, based on your investigations (perhaps because the employee has given evasive or inconsistent answers), you should take the matter further. Where there is evidence that the employee was not sick (for example they were seen in the pub watching a match), this will be a disciplinary matter. Unauthorised absence and reporting absences as sickness when this is not the genuine reason are serious disciplinary offences that could result in disciplinary action.

To limit liability for disability discrimination and unfair dismissal claims, you should ensure that you carry out a proper investigation, follow a fair procedure and do not jump to conclusions regarding an employee's absences, particularly where they have an underlying health problem.

What if I do not believe the medical certificate is genuine?

You may ask for permission to approach the employee’s doctor, or ask the employee to see a doctor appointed by you for a report to be prepared on their condition. The employee’s consent is needed but if they do not agree, you will be entitled to make a decision about the impact of their health on their ability to do their job, on the basis of the information that you already have. This could lead to their dismissal.

Sickness absence, the ensuing potential Statutory Sick Pay and annual leave can be tricky areas to navigate, particularly in this situation.  Before proceeding with any form of investigation and disciplinary procedure, we would always advise you consult your own policies and procedures, and seek legal advice if you are uncertain.  If you need assistance in writing sickness pay, annual leave or disciplinary policies, you can contact our Employment team on 023 8071 7717 or email employment@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.