Sick pay, expired visa, and sickness absence
If my employee’s visa runs out, can I dismiss him?
It’s against the law to employ someone who doesn’t have the right to work in the UK. So if the UK Border Agency doesn’t renew your employee’s visa, you have to dismiss him. If you don’t, you could face criminal charges.
However, you still need to follow the correct procedures to make sure a tribunal doesn’t class the dismissal as unfair. This will also minimise the risk of your employee making a successful race discrimination claim.
It’s not enough to just suspect that your employee doesn’t have the right to work in the UK—you need to investigate.
There might also be other options aside from dismissal. For example, your employee might still be able to continue working for you under a different immigration category.
To avoid being caught unawares by an employee’s expired visa, you should carry out follow-up checks on all your staff who have a time-limited right to work in the UK.
By doing so, you’ll always know which of your employees’ visas are about to expire, giving you enough time to deal with the situation.
My employee has a disability and is often off sick. Can I use my normal absence management policy to discipline her?
No, we wouldn’t recommend using your normal policy. Under the Equality Act 2010, employees whose sickness absence is related to their disability, either in full or in part, are entitled to protection against disability discrimination. This is irrespective of their length of service.
When it comes to dismissing a disabled employee because of excessive sickness absence, you must ensure that:
- Their sickness absence is the only (or principal) reason why you’re dismissing them.
- You follow a fair procedure before you decide to dismiss.
- The dismissal is reasonable given the circumstances.
In the past, the courts have challenged sickness absence dismissals because companies didn’t follow the proper procedures before deciding to dismiss. These include:
- Consulting with your employee during her period(s) of sickness absence.
- Obtaining up-to-date medical evidence about her current condition.
- Considering alternatives to dismissal, for example, offering her an alternative role.
My casual worker is off sick. He isn’t working next week, so do I still have to pay him?
Casual and zero hour contract workers are entitled to statutory sick pay (SSP) of £89.35 a week, as long as they’re absent from work due to sickness for four or more consecutive days and earn at least £116 on average per week.
Even though he isn’t working next week, your employee could still be eligible for SSP. This will depend on whether you have a rota in place, and whether you agreed with him which days you consider as qualifying days. These are the days you normally require him to work.
If you feel your employee isn’t entitled to SSP, you have to give your reasons for denying sick pay in writing.
We recommend you include a sickness absence policy in your workers’ contracts of employment.