Extension of self-certification period creates headache for employers

Extension of self-certification period creates headache for employers

21st December 2021

The extension of the self-certification period for statutory sick pay from seven to 28 days poses a significant dilemma for employers, says leading specialist employment law firm GQ|Littler. The changes introduced on December 17 are in effect backdated to cover absences commencing from December 10. These changes are temporary and will only apply to any absences beginning before January 27 2022.

Does the suspension of the seven-day self-certification rule mean employees (including those with contractual sick leave) can take a month off sick with no doctors note?

GQ|Littler says that this may in practice end up being the case, as the alternatives may be too costly and burdensome to be worthwhile for companies to adopt over such a short timeframe.

In practice employers are likely to be left with a choice of paying for a fit note from a private medical provider or paying company sick pay without a doctor’s note.

Whilst the employment contract may put the burden on the employee to provide the fit note (and therefore cover the costs of a private doctor’s visit) to be entitled to company sick pay, employers are likely to face complaints from employees should they decide to pay just statutory sick pay for any absences over the coming weeks in the absence of a fit note from the employee.

Caroline Baker, Partner at GQ|Littler says: “These changes are in practice going to force many employers to pay full company sick pay for weeks at a time with no proof that the employee has been unable to work.”

“While an understandable decision to free up GP’s time to deal with the Omicron variant, these changes put employers in a very awkward situation when dealing with absent staff in the coming weeks. Given the Omicron variant and other seasonal illnesses, this will likely apply to a large number of staff.”

How are companies likely to respond?

GQ|Littler says many employers may simply decide to pay company sick pay without fit notes for the period for which the 28-day extension applies.

Caroline Baker says: “Employers are unlikely in most cases to consider it worthwhile to put in place a system for getting doctors notes from a private provider for what is a very short period. However, should the fit note suspension be extended beyond January 26, there may be a stronger case for introducing private assessments of employees.”

GQ|Littler also says any companies which require some employees to acquire a sick note and not others must be careful to avoid discrimination.

Caroline Baker adds: “Employers who do not take a blanket approach to requiring fit notes must have solid reasons for deciding who to require a fit note from. Care must be taken to ensure no discrimination occurs towards staff with protected characteristics.”

About GQ|Littler

GQ|Littler is a leading specialist employment law firm and the London office of Littler, the largest global employment and labor law practice devoted exclusively to representing management. With more than 1,600 lawyers in 100 offices worldwide, GQ Littler serves as the single source solution provider to the global employer community.

Offering risk-based contentious and non-contentious advice, our legal expertise includes employment, immigration, data privacy and employee tax and incentives. Our client base spans a wide range of sectors including financial services, technology, healthcare, professional services and luxury goods, in the UK and internationally.

GQ|Littler is recognised as a leader in its field by both Chambers & Partners and Legal 500, which describes the firm as an “excellent team with strength and depth in every aspect”.

For expert insight into the pandemic’s impact on the future of the European workplace, including in the areas of remote work, employee wellbeing, managing annual leave and workforce reductions, see Littler’s European Employer COVID-19 Survey Report.