If you are stuck in such a situation, here is what to do.

My client, Ms. Chloe, recently began a seasonal role at ‘Global Goods Emporium’ in the city of Northwood. She was alarmed to find a clause in her employee handbook stating that any sick leave must be reported by 5 pm on the preceding day. This policy is inherently problematic. For instance, Chloe might feel a slight headache the evening before, only to wake up with a debilitating fever and flu-like symptoms, making it impossible to predict her illness and adhere to this rule. This raises significant questions about the legality and reasonableness of such a policy under UK employment law.

Advice in such cases

The first step is to understand your rights. An employer’s notification rules must be reasonable. Demanding notice for an unforeseen illness by a specific time the day before is generally not considered reasonable under UK law. You should follow the notification procedure as closely as is practicably possible, such as calling in first thing in the morning on the day of your absence.

Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of 100 GBP to 400 GBP depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored.

Applicable Sections of Law

While there is no single section of law specifying the exact time for reporting sickness, the overarching principles are governed by the Employment Rights Act 1996 and implied terms of contract law. Key considerations include:

• Statutory Sick Pay (SSP): The rules for SSP (Social Security Contributions and Benefits Act 1992) require an employee to notify their employer of their sickness. Employers can set their own deadlines for notification, but these must be reasonable. If they don’t have a rule, the employee must notify them within 7 days. A rule requiring notice the day before for an unpredictable illness would likely be challenged as unreasonable.
• Implied Term of Mutual Trust and Confidence: Every employment contract has an implied term that the employer and employee will not act in a way that is likely to destroy or seriously damage the relationship of trust and confidence between them. Imposing an impossible-to-follow rule could be seen as a breach of this term.
• The Equality Act 2010: If the employee has a disability, a rigid sickness reporting policy could be considered a ‘provision, criterion or practice’ (PCP) that puts them at a substantial disadvantage. The employer would have a duty to make reasonable adjustments.

If you are the complainant

Your primary responsibility is to inform your employer as soon as it is reasonably practicable. Here’s what you should do:

• Notify as soon as possible: Even if you’ve missed the 5 pm deadline, call your manager or the designated contact person as soon as you know you cannot work. Explain the situation clearly.
• Follow up in writing: Send an email to confirm your phone call. This creates a written record. State when you became ill and why you couldn’t follow the policy.
• Review your contract: Check your employment contract and the staff handbook for the exact wording of the sickness policy.
• Raise an informal grievance: Speak to your manager or HR department about the policy. Explain why it is impractical and unfair. They may not have considered its implications.

If you are the victim

If an informal approach fails or if you face disciplinary action for not following the rule, you should escalate the matter formally. This means you are now a victim of an unfair policy or action.

• Raise a formal grievance: You should raise a formal written grievance. Follow your employer’s official grievance procedure as outlined in your contract or handbook. This is a critical step before you can consider taking a claim to an Employment Tribunal.
• Seek Legal Advice: Before, during, and after the grievance process, it is vital to have legal counsel to ensure your rights are protected and your case is presented effectively.

How employers might react

An employer’s reaction can vary:

• Understanding: A reasonable employer will understand that illnesses are unpredictable and will likely accept your notification on the day of your absence.
• Informal Warning: They might remind you of the policy but take no further action, especially if it’s a first occurrence.
• Formal Disciplinary Action: A stricter employer might initiate disciplinary proceedings for failure to follow company procedure. This is where having legal advice is crucial, as any disciplinary action based on an unreasonable policy could be challenged as unfair.
• Withholding Pay: They might try to withhold company sick pay (though they generally cannot withhold Statutory Sick Pay if you qualify) for failing to adhere to the notification procedure.

FAQs people normally have

Can my employer refuse to pay me sick pay for not following the rule?
They may be able to withhold contractual (company) sick pay if following the notification procedure is a condition of the scheme. However, they cannot withhold Statutory Sick Pay (SSP) if you meet the eligibility criteria and have a reasonable excuse for any delay in notification. An unreasonable policy could be challenged.

Can I be dismissed for not reporting my sickness by 5 pm the day before?
Dismissal for a single instance of failing to follow an unreasonable reporting procedure would very likely be considered an unfair dismissal, especially for an employee with over two years of service. It would depend on the circumstances, any prior warnings, and the overall reasonableness of the employer’s actions.

What if I have a disability?
Under the Equality Act 2010, if your disability means you are more likely to have unpredictable absences, the employer has a duty to make reasonable adjustments to the policy for you. A failure to do so could be disability discrimination.

What evidence is required?

To challenge the policy or any disciplinary action, you should gather the following:

• A copy of your employment contract and the staff handbook/sickness policy.
• Written records of communication: Keep copies of any emails or text messages you sent to your employer about your sickness. Make a note of who you spoke to and when if you called them.
• Medical Evidence: For absences longer than seven days, you will need a ‘fit note’ from a doctor. For shorter absences, you can ‘self-certify’, but having a record of a doctor’s appointment or a prescription can be helpful.
• Witnesses: If you discussed the policy with colleagues who also find it unreasonable, their testimony could be supportive.

How long will the investigation take?

This refers to an internal process, not a police investigation. If you raise a formal grievance, your employer should follow their own procedure, which should be outlined in your staff handbook. Typically, an employer should acknowledge the grievance promptly, hold a meeting within a reasonable timeframe (e.g., 5-10 working days), and provide a decision shortly after. The entire process, including any appeal, is usually expected to be completed within a month, though complex cases can take longer. The ACAS Code of Practice on Disciplinary and Grievance Procedures provides guidance on reasonable timeframes.

Advocate Sudhir Rao, Supreme Court of India