The Holidays Act 2004 provides employees with a minimum entitlement of five sick days a year for employees who have worked for the employer for 6 months for at least 10 hours a week and no less than 1 hour a week or 40 hours in every month. Sick leave can be taken when the employee, their spouse, partner or dependant is sick or injured. Employees have to tell their employers that they are taking sick leave.
Let’s look at an example. Jim has called in sick this morning. He still has 5 days sick leave left. But the accountant, Jan, says she saw Jim having lunch at a café! Surely he’s pulled a sickie, you think! Under the Act, you are entitled to ask Jim for proof of sickness or injury after he has been sick for 3 consecutive days. However, you are also entitled to ask him to provide that proof after one or two days if you:
(a) Have reasonable grounds to think that the sick leave being taken is not genuine
(b) Inform Jim of your suspicion that the sick leave is not genuine
(c) Request proof of Jim’s sickness or injury,
(d) Meet Jim’s cost of obtaining the proof (eg Jim’s doctor’s fee)
Jim’s employment agreement might also state that proof is required for every period of sick leave taken.
If Jim can’t provide proof that his sick leave was genuine, there are several steps you should take before considering what to do:
(1) Talk with Jim –give Jim notice of a time to meet, tell him that he can bring a support person, what the meeting is about and the possible consequences of the meeting
(2) Give Jim the opportunity to give an explanation
(3) Give reasonable consideration to Jim’s explanations
(4) Provide Jim with a written record of your decision
There is a fine balance to be met between employers trusting employees to take sick leave responsibly, and employers protecting their businesses by not having staff away on paid sick leave when it is not genuine.
This article originally appeared in the Southland Times Work To Rule column. Mary-Jane Thomas is head of Preston Russell's employment law team. Contact her by clicking here
