14

A friend has been told that, if she is off sick, she needs to find someone to cover her shifts, and that she can't expect her manager to do that for her.

She is a part-time paid employee of a charitable organization. The charity runs sessions that can be attended by the public. Part of my friend's role is to ensure that there are sufficient volunteers to staff each session. Normally, my friend is present at these sessions herself, but if she is off sick, someone needs to 'phone around and find someone to come in and undertake her normal duties (setting out apparatus, overseeing the session etc.).

Her manager insists that this is not his responsibility to find cover when she is off sick, and that she has to do this herself.

Is this situation acceptable / legal in the UK? If not, what legislation covers this?

  • 2
    @FrançoisGautier Questions of a general legal nature that are properly scoped (i.e. country-specific) are typically on-topic here. Anything that doesn't require analysis of a specific situation to what could constitute legal advice is normally fine. – Lilienthal Apr 4 '17 at 11:02
  • 7
    I live and work in the UK and have never heard of this. It's generally the employers responsibility to ensure they have adequate resources, this includes taking sickness into consideration. I I would suggest your friend makes an appointment with the Citizens Advice Bureau to discuss this in further detail. – Darren Young Apr 4 '17 at 11:02
  • 13
    Her manager insists that this is not his responsibility, Well a manager can insist that his role is not to manage, he's still the manager... – Walfrat Apr 4 '17 at 11:04
  • 1
    @Lilienthal, I'm just refering to: workplace.stackexchange.com/help/on-topic What questions are off topic here? Questions asking for advice on what to do (including reviewing resumes, CVs, cover letters, e-mails, asking for legal advice, as well as specific salaries, billing rates, market worth, etc.) He asked: 3 questions: 1 - Is this situation acceptable in the UK? -> Opinion based 2 - Is this situation legal in the UK? -> answerable by a lawyer 3 - If not, what legislation covers this? -> answerable by a lawyer Probably we could talk about it in the meta – François Gautier Apr 4 '17 at 11:17
  • 5
    This is a question that an HR professional should be able to give without requiring a lawyer/barrister or an actual legal opinion. Voting to reopen. – Chris E Apr 4 '17 at 13:18
21

A friend has been told that, if she is off sick, she needs to find someone to cover her shifts [...] What legislation covers this?

Nothing, apart from the fact that slavery has been illegal since 1833. To the best of my knowledge, UK employment law does not specify the limits of what an employer can require of employees calling in sick but they can't stop employees from taking sick leave. If the employer retaliates against an employee for not respecting an unreasonable policy like this then the employee will most likely be able to submit a successful claim with the employment tribunal.

Looking at in depth, the only statutory regulations covering sick leave are those surrounding Statutory Sick Pay (SSP). There GOV.UK does say:

The employee should tell you they’re sick within your own time limit (or 7 days if you don’t have one). You can’t insist they tell you in person or on a special form.

You don’t have to pay Statutory Sick Pay (SSP) for any days the employee was late in telling you (unless there’s a good reason for the delay).

But that doesn't really cover the fact that your employer has an understandable expectation that you'll inform him if you can't make it to work.

In this case I'll fall back to ACAS as a reputable source. On managing short-term sickness they state:

Most ailments last only a day or so - some a week or two. But they are short-term illnesses - and this is what your employee should do if they are not coming in.

  • Speak to you or their manager as soon as possible. Many employers specify that within an hour of the employee's normal start time they must be notified of:
    • the nature of the illness
    • a likely return date.
  • If the illness lasts less than seven days, provide a self-certificate.
  • If the illness lasts seven days or more, provide a Statement of Fitness for Work (or Fit Note) from their GP.

ACAS also mentions the "legal right to be absent" and illness is one of many qualifying reasons.

Given the absence of specific legislation, an employee has to fall back to what's in their contract Companies typically have policies covering sick leave and absences in general. Whether those policies are themselves legal if they risk violating employees' basic rights or can be grounds for a case of "constructive dismissal" is a more complex issue and will typically involve talking to ACAS, Citizens Advice, or an employment lawyer.

So let's say an employer sets up a policy where people who don't arrange cover when they're sick have this counted against them as an unauthorized absence. The employer could refuse to pay the employee or could dismiss them, at which point the employee will likely have grounds to submit a claim to the employment tribunal.. Before that, ACAS (and potentially Citizens Advice) should be called upon to intervene and to try to mediate the dispute. At that point it becomes a matter for a legal expert, though it is my layman's opinion that a policy like this is clearly unfair and ludicrous and any action taken against an employee for not respecting the policy is equally unfair and will lead to a successful claim.


What now?

So now that we have all that out of the way, what could your friend do in this a situation? I would just tell her to explain to her manager that if she's too sick to work she's also too sick to arrange cover for her shift and that that responsibility should rest with the manager. Since the manager has already displayed a stunning level of incompetence and ignorance of his responsibilities I fully expect that this will not go over well. But I strongly suggest pushing back against this, ideally with multiple employees. If the company has an HR department or head office, they should be contacted next as they'd likely be livid if they heard of this.


I am not a lawyer and this does not constitute legal advice. This post is intended to summarise the available information on the topic of calling in sick and has been aggregated from what I believe are reputable source.

  • 5
    That's the obvious thing: Finding a replacement is work. If you're sick, you can't work, ergo you can't find a replacement. In other situations, like holiday, finding a replacement is work, therefore would have to be done in the time where you are paid for working. – gnasher729 Apr 4 '17 at 19:29
  • There are a lot of illnesses that may prevent you from physically being at work or performing certain tasks for a long period of time, but you could take an hour to make some phone calls. If you have enough energy to call in sick, you can make an extra call or two. – user8365 Apr 5 '17 at 11:59
  • 4
    @JeffO That's pretty damn heartless. And that thinking is precisely why so many people who don't have the energy to call in sick are still forced to do so to not risk their job. Even if we adopted that line of thinking you're also forgetting cases where people need others to call in sick on their behalf. Sick leave is intended to help people recover, not make them work from home. gnasher correctly pointed that this could be considered work out and that is itself a legal can of worms that my post doesn't even address. – Lilienthal Apr 5 '17 at 12:06
  • 3
    @JeffO, the manager is presumably healthy. Yes she/he can take this on as her/his highest priority task when someone calls in sick and even be the replacement if needed. If it is not important enough for the manager to do that, then it isn't important to find a replacement. – HLGEM May 21 '18 at 13:11
  • 1
    @JeffO: Work is work. Your comment is effectively arguing that a bit of work isn't really work and thus shouldn't be refused, which is massively subjective and crossing a line. For example, your boss can reasonably ask if you can call your replacement to give them a short explanation of the work that needs to be done. That's acceptable. However, if the sick employee is unable to do so, that should not bear negative consequences for them. Furthermore, failing to find a replacement should not preclude the ability to take a sick day. It is a manager's job to manage the staff and workload. – Flater May 22 '18 at 8:58
0

Since you're talking about the UK, there's one hot topic right now that would be extremely relevant to this: GDPR, which comes into force on 25th May.

In order to be able to arrange cover, it follows that you must have the personal contact details of the people who can cover for you. To do so when you're not at work, you need those contact details to be available to you at home. Since you mention that the manager doesn't consider this to be their job, then it further follows that all employees must be required to carry the personal contact details of anybody who can cover for them, in a format which allows them to access it at home.

GDPR imposes a number of requirements when it comes to handling employee data. Because the employee/employer relationship carries with it an inherent power imbalance, the employee's consent is generally not considered to be sufficient in its own right for processing the data. Broadly speaking, that means the employer must demonstrate a legitimate interest that justifies their holding that data. It's probably fairly reasonable for a company to need the personal phone numbers of its employees for the purposes of contacting them to cover shifts etc, so let's assume that's a given.

The next hurdle to clear is the question of necessity. Is the current approach a reasonable way of achieving this aim, and is there a less intrusive way to achieve the same goal? It seems to me that there's no reason for employees personal contact details to be available to other employees beyond their immediate manager and HR.

If the company can demonstrate that this method of processing employee's personal data is justified, proportionate and necessary, they need to:

  • Ensure that the privacy policy applicable to employees specifies that their personal data will be held and processed by any coworkers who they are able to cover for
  • Ensure that they have measures in place to control access to that personal data, and to be able to audit who has accessed that data and when.
  • Ensure that the employee data held by other employees is secured such that it cannot be accessed by any unauthorised persons.

Of course, that's just the surface of the GDPR requirements - there's probably lots more. And that's before we get into the question of whether contacting other employees is in fact "working" - in which case the employee is entitled to be paid for their time, and would possibly be ineligible for statutory sick pay for that day.

  • 2
    Maybe I missed it, but how does this answer the question? You gave a really detailed explanation of GDPR and that is great, but ended with a statement that is just a possibility that they will be ineligible for pay (something not so reliable). – DarkCygnus May 21 '18 at 17:47
  • How does it not answer the question? The answer is no, they cannot, because it would require that the employee do something that is illegal, i.e. holding personal information without lawful basis and without an assessment of risk. – Tom W May 22 '18 at 10:37

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.