Category Archives: sickness

A little out of elbows?

I was sitting in a cafe last Sunday, when I overheard a man (who obviously ran a local bar), yelling down the telephone at one of his employees.

We’ve all had noisy conversations at work but this one troubled me.  Sitting with my coffee, I very quickly heard:

a)      the employee’s full name, and his medical condition

b)      where he worked

c)       that he was not registered with a GP

d)      that he wanted to work with a self-diagnosed ‘dislocated shoulder or elbow’

e)      that the owner felt the job involved lifting barrels and pulling pints and was not safe for someone with an injury

f)       that the employee wanted to come to work but have his duties adjusted; and

g)       that he had a contract that entitled him to employer’s sick pay (not just statutory sick pay).

The conversation went round and round, getting noisier and noisier, and it was obvious the boss’s instincts were mostly in the right place but that he had no idea how to sort out the situation.

I was sorely tempted to give him my card – but I was in my ‘scruffy Joe’s’ at the time, and didn’t think it would go down that well.  But here’s some advice for him, and anyone else who is in a similar situation.

a) and b)   A mobile phone in a cafe is not the place to have this kind of conversation.    If I know who is the guy is, who he works for and what he suffers from, and I don’t even live in that town – then a lot of people know.  This is a breach of confidentiality, and depending on the exact way the data is accessed and shared, a possible breach of the Data Protection Act which requires ‘sensitive’ information which includes sickness data to be held, accessed and used in a very structured way (

c)            If you have staff who are not registered with a GP, they can register with one.  If they can’t get one to accept them, then the local Primary Care Trust (PCT) will organise one for them.  If they put in their postcode on this link, the details of the right PCT will appear   (

d) and e)  Every employer should have risk assessments about heavy lifting and other risks at work.  If there are more than five employees these should be in writing.   Either way, if there is heavy lifting involved, the boss should already have proper procedures in place (even when people are not injured) (   If the guy injured  himself  and was not given proper instructions/equipment/training then this could come back on the boss.

f)             There is a duty for the employer to make “reasonable adjustments” if the condition is a disability (as defined in the Equality Act).   This would normally apply to a condition that lasts a year or more.   A self-diagnosis may be a wrong diagnosis and it may be there is some arthritis in the shoulder or some other long term problem.   It may also be a straight dislocated shoulder, in which case relocating it could be a good thing!

g)            The employee can self certify off sick for up to 7 days (form available from .   After that a GP certificate (a fit note) is needed for statutory sick pay (SSP) to be properly paid.  Without a certificate, SSP should not be paid.   It’s a good idea, as an employer,  to read your own contracts and be familiar with what they say.

Finally, don’t have this conversation by shouting down a mobile phone.  Arrange to meet for a quiet chat and to confirm what you have said in writing so the employee can access the right PCT and start solving the problem.

Then I can have coffee in peace…………another cappuccino please?

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050                  Fax: 08452 303060
You can follow Annabel on Twitter


Filed under sickness

Injured and still dancing?

Not everyone who comes to the dance floor is fit enough to dance all the steps.  Sometimes we are aware of our limitations beforehand.  Other times, we have no idea until we try to make a move and find we simply cannot.

Our mood and level of tension can affect our range of flexibility and options.  When I am relaxed, I can reach far further than when I am tense and anxious.

A good  leader will start by finding out how their follower is right now.   If the follower has had a ‘bad day at the office’ and the leader starts the first dance by initiating complex dynamic moves without any warm-up or introduction, the follower may find it impossible to relax and follow.

A good leader starts by relaxing themselves, then relaxing their follower and finding out what their follower’s capability is.  They then offer a lead within those possibilities.  As the follower gains confidence, the leader slowly expands the range of steps they are leading.

If the leader wants to dance more complicated steps, they must pick out a follower who is capable of matching them.  To demand too much of the follower is to invite distress, even  injury.

This responsiveness to the state of the follower is something leaders take a long time to learn.  Beginner leaders on the dance floor are barely able to control where they put their own feet, never mind worry about how their follower might be feeling.

But tango is an improvised dance form, so there is no need to take one particular set of steps, at any particular time, instead of another.

Back to the world of work . . . . The Government changed sick notes into ‘fitness notes’.  This is an invitation for employers to find out how their ‘followers’ are, and adjust the demands made upon them to take account of their health.

Many organisation are currently unable to improvise when it comes to fitness at work.  Hamstrung by decades of bureaucracy, the ‘management of sickness’ is mostly confined to the collection of statistics (rarely used) and the occasional dismissal or warning.

The ‘welfare’ issues of health and safety are detached from attendance, while customer care, performance management and other benchmark issues are not integrated in any way. We live in a world where most people are viewed as either ‘fit to work’ or ‘off sick’, with no understanding of the various in between states where we all fluctuate.

The disabled have a special legal license via their adjustments to be ‘half fit for work’ (not always honoured), but the rest of us are expected to dance our working dance regardless of how we feel, unless we are so ill as to be unable to attend work.

There is more room within the music of ‘achievement’ and ‘objectives’ than many managers realise.  Sometimes it is necessary to pause, just as in tango, to make time and space for the faster moves that will follow .

Our followers can recover their balance and poise (if they have lost it), and we can reconnect with each other and the music before moving on.

Will any organisation in the UK use fitness notes to create the possibility of greater achievement?

Or is everyone going to look at this as another malingerer’s charter, another piece of ‘red tape’ that handicaps the boss?

If every leader danced with every follower as if the follower were deliberately withholding their best from the dance floor, the act of dancing would become a monstrous thing of tyranny.

If every follower stepped on to the dance floor knowing that however bad they felt, they had no option but to do what they were led by someone with no idea of how they were – would they do it?

If we treated our best dancers as if their off days (and yes, they have them) were a deliberate insult to the world of dance, how long would it be before they went somewhere else?

And if we made them get a note from their mother or their GP to say they had a stiff back today before we changed our lead to accommodate that – would they ever dance with us again?

We live in peculiar times where the ‘leader’ and ‘follower’ mistrust each other in the dance of work.  The dance seems hard, the resistance seems great, and few are in harmony with the music.

Let’s take a moment, a little balanceo as they say in tango, and discover who we really are and who is able for what.

Let’s take a moment for fitness – without a note! As on the dance floor so in life …….

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.   Tel: 08452 303050  Fax: 08452 303060  Website :  You can follow Annabel on twitter –

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Filed under employment law, performance management, sickness

Government can’t follow it’s own rules

The Swine flu helpline has been caught out using workers under 18 at times when it is illegal for them to work. 

This is not the first time the Government has had difficulty in interpreting or applying employment law legislation.  From losing millions by printing incorrect advice on discipline and dismissal or TUPE to failing to comply with the basic rules of employment when acting as an employer the UK government seems to have the view that laws are for other people.

Whilst MPs are content to churn out complex rules to cover the smallest UK employer, the reality is the government departments cannot follow the rules they impose on everyone else.  Why?  

Is it that the rules are so difficult to understand and interpret? – in which case why not make them easier?.

Or is it that senior officials take the view the rules don’t apply to them?

Why not survey government departments for compliance before we impose these rules on smaller businesses?  Anything they can’t comply with let’s suspend while we get it simplified.

With the tax payers millions at their disposal and the benefit of having written the rules – if they can’t comply how can anyone else?

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Filed under swine flu, young workers

Accruing holiday

Workers continue to accrue statutory holiday when they are absent … on holiday, on sick leave, on maternity leave, for whatever reason … so long as the employment contract is still in place.

Extended sick leave

Recently, the House of Lords (in HMRC v Stringer) has decided that an individual whose employment ended after a substantial period of sick leave was entitled to be paid for accrued but untaken WTR holiday, even if it went back earlier than the start of the holiday year.   This is a dynamic area of employment law, and you should check before calculating the final payment of anyone dismissed during a long term absence.

Sickness on pre-booked leave

Some employers have agreements that provide for sickness to ‘trump’ holiday and for annual leave to be refunded.  Most employers do not.   The default is – that the holiday had been booked and taken, and whether the individual was sick made no difference.  It can surely only be a question of time before someone challenges this, and says they need their full statutory holiday entitlement some other time when they are not ill!

Maternity leave

Individuals on all forms of family absence continue to accrue leave while they are off.

Women on maternity leave must be permitted to take their annual holiday entitlement in a period other than their maternity leave, or to carry it forward into a later year (or payment if they do not return).

Holiday is pay

Accrued statutory holiday is pay and thus cannot be forfeit when an individual is summarily dismissed for gross misconduct.  Additional contractual pay can be treated differently. 

Any non-payment of holiday pay can be claimed via a tribunal as a non payment of wages.

Reducing holidays

Any reduction in contractual holiday can only be made with consent.  Agreements attempting to reduce holiday below the statutory minimum have no effect.  Employees can still insist upon their basic paid holiday.

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Swine flu – who pays?

Sick pay

Pandemic or not, people off sick with ‘flu are covered by their normal sick pay rules. Everyone is entitled to statutory sick pay (SSP) but this only applies after three ‘waiting days’ and pays £79.15 a week to anyone earning £95 a week or more.

Employers may contract to pay additional sick pay above SSP, but there is no default entitlement – it depends what the contract says. And there’s usually a time limit on sick pay, so an individual’s sick pay will depend not only on the sick pay scheme, but on how much sick pay they have already had.

Medical certificates

There is no need for anyone to visit their GP to get a medical certificate for the first week of absence. Individuals can ‘self certify’ for SSP for the first week, and most employer ‘top-up’ schemes follow that pattern. Individuals who are off more than one week will need a medical certificate to keep claiming SSP. They should phone their GP surgery to find out how to get one. Usually it is necessary to be seen by a GP but if there is a real outbreak of mass ‘flu, there may be some temporary change of rules. This would certainly help free up GPs. Let’s hope someone has the sense to do this if needed.

Family commitments

If schools are shut, then parents may be eligible for unpaid “dependants leave” in order to arrange care for the children. If the children get flu this will also apply. This is normally a brief period of unpaid emergency leave – say up to 48 hours. “Dependants leave” applies equally to elderly or other relatives, or members of the household dependant on an individual for care. The time off is to arrange care – there’s no general legal right to time off to look after a relative or dependant.

And there is no general legal right to be paid for any of this time. Some employers may agree for annual leave to be used. Others may agree for time to be made up later, but they are not obliged to.

Workplace closed by employer

Anyone working in schools or hospitals is covered by national and local agreements that deal with what to do if the workplace is closed.

If the contract provides for flexible working, annual hours, or homeworking, then these provisions will normally apply if the workplace closes.

For ordinary workers on standard contracts, a lot depends on whether the employer has the right to make unpaid layoffs (sending the worker home without pay). If the contract itself does not expressly say that the employer may lay off without pay, then ordinarily any layoff would have to be paid.

In an unpaid layoff, the employee is still entitled to statutory “guarantee pay”, paid by the employer. For this, a “layoff” is a day when less than 50% of ordinary work was provided. For the first five days layoff in any 3 month period, employees are entitled to 50% of their normal basic pay subject to a maximum of £21.50 per day.

If the government orders a general closure of workplaces, it may be that contracts are ‘frustrated’ by a supervening event. Technically this may mean that there is no obligation on employers to pay during the period of ‘frustration’. Frustration is a technical legal term, and does not simply mean “feeling upset”. We will revisit this, if necessary, in a later blog.

Disabled or vulnerable workers

If an individual has a medical condition that make them more vulnerable to ‘flu, they may be advised by their GP to avoid public places. This may affect them getting to work, or being at work. If the individual is disabled within the meaning of the Disability Discrimination Act (DDA), then the employer will need to consider making “reasonable adjustments” to their duties to take account of their condition. The DDA normally deals with long term adjustments, rather than short term ones. But it would be wise to make appropriate adjustments – for example, if you could arrange for people to work effectively from home, it would be silly not to do so. Similarly if a pregnant woman is advised to avoid the workplace, you should make appropriate adjustments to her duties.

But adjustments should be based on qualified medical advice, not simply on an employee’s self-diagnosis of some particular threat.

Too nervous to come in

Employees who are frightened may decide not to attend work to reduce their risk of infection. If they are not ill (or a vulnerable worker) they are not entitled to be paid or to claim statutory sick pay.

Health and Safety

Employers may have their own health and safety plans for ‘flu pandemics. These would normally include:

  1. Reducing business travel
  2. Reducing face to face meetings
  3. Reducing attendance at work/commuting by using alternative technology
  4. Encouraging workers to take time off as soon as any symptoms showed, rather than struggle in and infect their co-workers
  5. Encouraging home working where possible.

We are happy to deal with queries on this subject by email: or via twitter or put questions on our blog in the comments section.






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