The overseas sick note – and other holiday hang ups

Going on holiday is the highlight of the year for many. Time to rest and relax, travel to get some guaranteed sunshine, perhaps visit family overseas. It’s not always plain sailing though. And as most UK employment lawyers will tell you, the holiday season can create many headaches for employers and employees: from falling ill abroad, to flight delays there are many reasons why an employee may end up taking off more time than they had planned – and that their employer had organised cover for.

This is a key issue which many employers face – but employees are also put in a tricky position wondering if they will be able to satisfy their employer that they really were ill while they were on holiday, not just enjoying some extra sunshine, and this delayed their return.

An employee must provide their employer with a fit note if they are off work because of ill health for more than 7 days in a row. This is a document that will say whether the employee is fit to work or not. The fit note may also say that the employee may be fit to work if changes are made to some aspect of the role. The fit note is a prescribed form provided by the UK Government – Department for Work and Pensions. Not only does it provide the employer with advice from a doctor about the employee’s condition, it is necessary for the payment of Statutory Sick Pay. Any top employment law firm will be happy to advise employers and employees on this.

An employer may ask an employee who is off work for less than 7 days to ‘self-certify’ that they were unwell.

A fit note is ‘advice’ from the employee’s doctor. An employer does not have to accept it, or its contents, but it is usual to do so unless the employer intends to seek advice from an occupational health adviser about whether the employee is ready to come back to work. If you have any concerns, either as an employer or an employee about how to handle a fit note in any situation, it’s worth taking advice from recommended employment solicitors.

If an employee is unlucky enough to fall ill while they are abroad – and this delays their return to the UK and to work, it creates something of a problem for the employer. An employee who is delayed by less than 7 days can self-certify according to the employer’s absence policy. An employer may be suspicious of an employee but without some kind of evidence to suggest the employee was not ill and essentially took unauthorised time off, it might be tricky to take this further.

An employee who is unable to return to work for 7 days or more as a result of being ill abroad will be unable to provide a UK fit note – so what should the employee and employer do? If someone has been ill enough that they have been unable to travel home, it’s likely that they will have had to see a medical professional at some point. An employee would be advised to obtain some form of note from the doctor or hospital in the country where they have been on holiday and where they were treated. It would also be a good idea to have the note translated if it is not written in English.

As already indicated, an employer does not have to accept any fit note and can take their own advice about the employee’s health if they wish to do so. Likewise, the employer does not have to accept a foreign sick note. If an employee is delayed in their return to work and does have a note from a local doctor or hospital, it’s up to the employer whether to accept it or not, but it may well be unreasonable for the employer to refuse to accept it and commence disciplinary action against the employee.

Flight delays seem to be a more and more regular occurrence with airlines and airports experiencing industrial action, or insufficient air crew impacting on flight schedules. If an employee is delayed home because of circumstances beyond their control, an employer may have no choice but to accept the absence although will not necessarily have to pay the employee for the period of absence. The employer would be entitled to ask for evidence of the delay, for example the employee could provide information from the airline about the reason for the delay, whether it be a cancelled flight or a strike.

If it is not clear why the employee did not show up for work, it may be appropriate for the employer to commence disciplinary proceedings against the employee. Unauthorised absence is usually a potential ground for dismissal.

This might take the form of a disciplinary investigation – so the employer needs to be careful to follow the correct process and to make sure the employee can put forward their side of the story and present any evidence for the delays that impacted on their coming back to work, before any action is taken. If a disciplinary sanction is to be imposed, it must be reasonable.