Taking time off for Sick Leave is part of working life. Managing Sick Leave and time of is part and parcel of running a team. These days, with employee wellbeing increasingly becoming a priority for employers, there appears now to be less “shame” associated with taking a day off, if you aren’t feeling well, physically or mentally.
This blog looks at the general principles of Sick Leave in the UK, and the specific question of what happens when a sponsored employee needs to take Long Term Sick leave for up to 6 months.
A Home Office licenced sponsor will need to consider Immigration Compliance issues Long Term Sick Leave could raise, in tandem with normal HR rules on employee Sick Leave.
Sick Leave General Principles
Sick Leave for up to 7 days, and more than 7 days
Someone who’s been off work for less than 7 days in a row can provide their employer, if asked, with confirmation of their poor health. This is called “Self-Certification” of Sick Leave.
If an employee is off for more than 7 days in a row, they would need to give their employer proof of their illness, by law – this would be in the form of a so-called “Sick note” – a letter issued by a doctor.
Someone who falls sick shortly before or during their holiday are also able, by law to take the time off as “sick leave” instead of holiday. This means they can use those same days, which were originally booked as holiday, as annual leave. They won’t “lose” valuable annual leave feeling poorly at home.
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Long Term Sick Leave
Someone who, due to illness or a health condition, is off work for more than 4 weeks is classified as being on “Long Term” sick leave. People on Long Term Sick Leave do not lose their entitlement to annual leave.
Employers must follow certain protocol (including considering option for flexible working or changes to the employment duties) and must consult actively with the employee about their health (and timeline for recovery and return to work), before making any drastic decision to dismiss a Long-Term Sick employee.
Something an employer would not want to hear from any employee is that they are seriously ill or need long term time off for treatment.
But a very realistic question is, “can I continue to sponsor a migrant if s/he informs me that s/he is ill and requires treatment for up to 6 months?”.
Considerations about Long Term Sick leave for sponsored employees are outlined below.
Sponsors need to maintain records of attendance and absences for their sponsored migrant workers. Sick Leave must be recorded in the same way as holiday and annual leave.
The employer must ensure that they have adequate records of the person’s Sick Leave (medical records) and a record of duration of the person’s absences.
If the Home Office visited the business and found a sponsored worker absent, you could certainly explain that the person was on approved Sick Leave – but without the relevant records and evidence of the reason for their absence, the Home Office could still proceed to take compliance action against your business (i.e. suspend your sponsor licence) for failure to comply with your record keeping duties.
Normally sponsors are required to report changes to a sponsored workers employment within 10 working days. Reportable changes are listed in the sponsor guidance and include changes to the job title, duties, work location (this is not an exhaustive list). If a sponsored worker takes unpaid leave for more than 4 weeks, this is normally a “reportable event”. Unpaid leave of more than 4 weeks also normally requires the sponsor to terminate the sponsorship of the said migrant.
However, there is an important exception to the above reporting/visa cancellation for Long Term Sick Leave.
Someone whose sponsored salary level is reduced or suspended whilst there are on Long Term Sick Leave can continue to be sponsored and the employer does not need to cancel their sponsorship.
So, if your migrant is absent, say, for 6 months due to Long Term Sick Leave, (a) this does not automatically mean that they cannot continue working for you and (b) you do not need to report the leave/drop in salary to the Home Office.
You DO however, need to ensure that you are keeping correct records of the leave of absence and meeting employment law requirements.
Contact A Y J Solicitors are caring and competent immigration lawyers. We deal with your matter with utmost sensitivity and careful attention to detail. If you have questions about sponsored workers on Long Term Sick Leave, or need any other compliance support, we are ready to help.