At our most recent Ask the Expert seminar, we were asked by an employer what they should do if a staff member who normally works in the office full time phones in before their shift and informs their manager that they are not feeling well but that they would be able to work from home. The employer wanted to know whether they have an obligation to make the employee take a sick day or whether instead they should allow the home working, but check up on the employee throughout the day.
Follow normal protocols and be consistent
This is a common problem, particularly with the increase in home or hybrid working. The answer, in my view, is that you follow the protocols and procedures that you would do if the employee reported for work in person, or phoned in, and then told you they were unwell.
In the first instance, have a conversation with the employee as you would normally about their fitness for work and ask if they feel they should be working as, ultimately, that is a decision for the employee to make. You should however balance that with your obligation to preserve the employee’s health and safety. If they report for work and it is clear to you that they should not be working or that doing so is a danger to their health and safety or that of others then you should tell them to cease work. If you follow this approach, there is still an obligation to pay them. However, in my view, that is less risky than having them work and then they injure themselves, a colleague or a third party.
Clearly whether you should be telling the employee to cease work or whether, if possible, they could do some work at home will depend on the circumstances. Someone who perhaps has a cold and doesn’t want to spread germs around their colleagues might be able to work at home. That request and approach may also make business sense as the employee can work at home and then they don’t pass on bugs/infections to their colleagues who in turn need to take days off. But someone with a more serious health condition or ailment, although they have the ability work at home, perhaps should not do so.
Also, if you are concerned that certain employees will abuse this option should you tolerate it, you could adopt a hard-line stance of “you are either fit to work or you are not”. While an element of flexibility can give as much benefit to the employer as it does the employee, consistency is also important as treating employees differently could result in grievances or complaints of discrimination.
The answer to this question was partly based on a one off scenario or occasional request. But what about the employee who repeatedly asks or who always asks on the Monday morning following a heavy weekend? This is where following your usual absence reporting procedures will also allow you to monitor how often this happens and, if it happens repeatedly, whether this is something that you need to address more formally. Is there poor performance or misconduct? Does there need to be a more serious conversation? Having that record and paper trail will help you answer that question.
Obligations while at home
Remember that you have an obligation to preserve an employee’s health and safety when they are working, even where they are not actually on company premises, such as at home. So, if it is decided that the employee could work from home you should check up on them throughout the day to make sure that they are ok. Don’t make the mistake in thinking that because they are in their own home you have no responsibility.
The short answer here is that there is no absolute right (unless their contract says so) for an employee to work from home when they phone in sick. Use your common sense and best judgement. If it is clear that the employee should not be working then regardless of whether they are at home or in the office then they should not be working and following your usual protocols and having frank conversations will help you assess which is more appropriate or whether there needs to be a different conversation than one about home working.
If you need help with this or any other area of Employment law then please contact the Blackadders Employment law team with offices throughout Scotland.