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7th February 2018

Ask the Expert – Sending employees home sick

Question:

“We operate in a safety-critical manufacturing environment. Our employees are required to operate heavy machinery, and if they are unable to do so there is significant risk to the production process. An employee of ours was recently in an accident outside of work but is still coming to work. He claims to be fit enough to work but we consider his arm to be injured to the extent that there is a risk to both him and the production process if he continues to work. Are we able to send him home sick, even though we pay only statutory sick pay?”

Answer:

An employer does not have an explicit right to send an employee home sick if they are ill or injured, except where there is a clause in your contractual documentation to that effect.

However, even if your contracts don’t expressly cover this situation, you would not necessarily be prevented from sending an employee home in such circumstances. For example, an employer may have less scope to send an office worker home if that employee has a slight cough, but in an environment such as the one that you describe the employer would have to consider both the functioning of the business and the health and safety of the employees, including the one who has been injured.

Of course, an important factor from the employee’s perspective will be pay. If you have no contractual sick pay scheme and pay Statutory Sick Pay (SSP) only, then the employee will not be entitled to pay for the first three days of any sickness absence. In this case, if the injury is serious, the employee may have to be off for some time, which could drastically reduce their income.

What could make that even trickier is the employer’s implied duty to pay wages if the employee is willing and able to work. Given that the employee is still coming to work, they may try to argue that they are in fact willing and able, despite your thoughts on the subject. That in itself could lead them to claim that you are breaching their contract, or unlawfully deducting from their wages, by sending them home to receive only SSP.

On that basis, it makes sense to seek a medical opinion on the injury as soon as possible. As a manufacturing plant you may have an internal Occupational Health (OH) team, which may be able to give you advice before you decide to send the employee home. Otherwise, an appointment could be made with an external OH provider. If they are sent home before you can obtain a medical opinion, it may be prudent to keep them on normal pay to avoid any complaints.

As with most OH referrals, it is important to find out the current extent of the injury, its effect on the employee’s ability to do their job and the likely duration of any such effect. It would also be sensible to ask whether any adjustments could be made to allow the employee to remain in work.

If you can obtain medical evidence that they are unfit for their role, you are likely to have more justification for sending them home and classing them as on sick leave. However, it is recommended that you consider whether the employee could be redeployed to another area of the business instead. Of course, if the employee is trained in only one area then it may not be feasible to send them to a less safety-critical department.

It is also possible that the OH provider deems them fit for work but you still have doubts. In that event, you would likely have less scope to keep them from working, as there is evidence of them being willing and able to work. If you do keep them at home in those circumstances, it is likely to be safer to maintain them on full pay to reduce the risk of claims.

On a related note, you may wish to update your contracts and/or policies to confirm the approach that will be taken in such circumstances.

If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.

7th February 2018