In what circumstances can an employee claim statutory sick pay?
Where an employer has reason to believe that an employee absent on sick leave is working elsewhere can it arrange for covert surveillance?
Are employers obliged to top up statutory sick pay to an employee's normal earnings?
Is there an upper age limit on statutory sick pay?
Are employees employed on a contract lasting less than three months still denied certain rights?
What are the potential problem areas of offering benefits to employees in the event of sickness absence?
If an employee has been signed off work by his or her doctor for a particular period can the employer allow the employee to return before the end of that period?
Where an employee who has exhausted all entitlement to sick pay is to be dismissed on grounds of ill health will he or she be entitled to any payment throughout his or her notice period?
Where an employee in the early stages of pregnancy is taking regular time off sick how should the employer handle the situation?
Where a pregnant employee who is off sick with a pregnancy-related illness has used up her company sick pay entitlement is there any obligation on the employer to pay her at her normal rate of pay?
Can an employee's car allowance be withdrawn while he or she is on long-term sick leave?
Where an employee has asked for a phased return from long-term sickness absence, can the employer decrease his or her pay to reflect the reduced hours being worked?
Would an employer be at risk if it terminated the contract of an employee on long-term sickness absence before the employee's entitlement to contractual sick pay had been exhausted?
If an employee's sickness absence is due to a workplace accident, should he or she be paid in full where there is normally no provision for full sick pay?
Can an employer withhold occupational or statutory sick pay from an employee who is frequently absent from work due to sports injuries?
Can an employee who is expected to have a long period of sickness absence due to injury sustained during participation in a dangerous sporting activity be dismissed earlier than would normally be the case?
Where an employer wishes to reward employees for low sickness absence, what factors must it take into account?
If an employee works part of the day before going home sick, should this day count as sickness absence?
If an employee goes abroad for treatment will he or she still be entitled to receive statutory sick pay?
If an employee fails to return from a holiday abroad and claims that this is due to illness, must the employer treat a medical certificate sent from another country as evidence of incapacity?
In considering whether or not to arrange covert surveillance, the
employer must have regard both to art.8 of the European Convention on Human
Rights, the right to respect for private and family life, and to the Employment practices data protection code (PDF format, 449K) (on the ICO website). Unless the employer is a public body, the
employee will not be able to bring a stand-alone, directly enforceable claim for
breach of the Human Rights Act 1998. This is because the obligation not to act
incompatibly with Convention rights applies only to public authorities and not
to private employers. However, courts and employment tribunals are public
authorities for the purposes of the Act and, in interpreting and applying the
law, they are obliged to act in a way that is compatible with Convention rights.
The risk is, therefore, that the employee will bring another type of claim, for
example a claim for unfair dismissal if the outcome of the covert surveillance
is dismissal, and assert that the dismissal was unfair because the evidence
gathered against him or her was in breach of the right to respect for private or
family life. Alternatively the employee may resign and claim constructive
dismissal on the basis that the covert surveillance breached the implied term of
mutual trust and confidence between employer and employee because it was in
breach of his or her right to respect for private or family life. The "employment
practices data protection code" is intended to ensure compliance with the Data
Protection Act 1998 and offers specific advice on covert monitoring. The code
itself is not legally binding but relevant parts of it are likely to be cited by
the Information Commissioner in connection with any enforcement action taken
under the Act that arises in relation to the processing of personal information
in the employment context.
The leading authority in this area is McGowan v Scottish Water  IRLR 167 EAT. Following suspicions that McGowan had
submitted falsified timesheets, Scottish Water determined that covert
surveillance should be carried out on him. Evidence was gathered and McGowan was
subsequently dismissed on the grounds of dishonesty in accordance with Scottish
Water's disciplinary procedure. He argued that the covert surveillance had
breached his right to respect for private and family life. However, the
Employment Appeal Tribunal held that Scottish Water was investigating what was
effectively criminal activity. The surveillance went to the heart of the
investigation that Scottish Water was bound to carry out to protect itself. The
surveillance was not undertaken for minor, whimsical or external reasons and was
not, therefore, disproportionate.
The "employment practices data protection code" says that, before
considering arranging for covert surveillance to be carried out on an employee,
the employer's senior management should carry out an impact assessment to decide
if and how to carry out the surveillance. The impact assessment should clearly
identify the purpose behind the covert surveillance and the benefits it is
likely to deliver, identify any likely adverse impact, consider alternatives or
different ways in which the surveillance might be carried out, and finally judge
whether covert surveillance can be justified. The employer must also have
reasonable grounds for its belief in the employee's misconduct and must be
satisfied that notifying the employee about the surveillance would prejudice
detection of the malpractice. Covert surveillance should be used only in
exceptional circumstances where there is suspected criminal activity or
equivalent malpractice. In this case, the employee might, for example, be
claiming company sick pay when he or she is not really sick and is working
elsewhere (unless of course the outside work is not incompatible with the reason
for sickness absence and takes place outside the employee's normal working
hours). If covert surveillance is thought to be justified, the employer must
ensure that the surveillance does not go beyond that which is reasonably
necessary to protect the business, ie it must be a proportionate response to the
problem that it is seeking to address. The least restrictive means of protecting
the employer's interest should be adopted and monitoring should be strictly
restricted to the specific investigation being conducted and kept within a fixed
time frame. For example, if the employer has been informed where the employee is
working, it could simply ask for confirmation from the other employer without
the need for covert surveillance. Alternatively, the covert surveillance could
be of the employee arriving at and leaving the other employer's premises, rather
than of the employee's home. There should also be clear rules limiting
disclosure of and access to the information obtained. If information that is not
relevant to the investigation is revealed in the course of surveillance it
should be deleted. Finally, if a private investigator is to be used, the
employer should make sure that there is a contract in place that requires the
investigator to collect information only in accordance with its instructions and
in a way that satisfies its obligations under the code.
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