Alterations to sick leave go too far, says expert

Kate Wilkinson. Photo / Northern Advocate

The Government's plan to change the law so that bosses will no longer need reasonable grounds to demand proof of sickness from a worker is being called a step too far by an employment law expert.

The current law states that an employer can ask a worker who has taken three consecutive sick days for proof of sickness or injury, which may include a doctor's certificate.

But the law also states that an employer can ask for this proof if there are "reasonable grounds to suspect" that the sickness is not genuine, even if it is only one day's sick leave.

The employer must tell the worker as early as possible and pay the doctor's bill.

Labour Minister Kate Wilkinson confirmed that the Government wants to make the law simpler.

"The intention is to look at re-wording [the act] to remove the requirement of 'reasonable grounds'. By simplifying the law it makes it clear that an employer can ask when they're suspicious," she said.

"The concern employers have expressed is that they're unsure about the point at which they have reasonable grounds.

"This small change makes it obvious to absolutely everyone that someone who likes to pull sickies runs the risk of being pulled up."

Employment law expert Max Whitehead said there was a case to change the current law, as the legal definition of "reasonable grounds" was uncertain.

As things stand, a boss would not necessarily have reasonable grounds to demand proof from a worker who claimed to be sick on three Fridays over six months, he said.

But removing the test of reasonable grounds was "going too far" and left the law open for "unscrupulous employers to abuse it".

Ms Wilkinson said the fact that employers have to pay for the doctor's bill would be a disincentive to abuse the law.

"So no doubt it will only be used when there is genuine concern someone is abusing their sick leave. I don't expect this provision will get much more use than it does right now, but it is intended to be much simpler to understand and implement."

Labour's associate spokeswoman for labour issues, Darien Fenton, asked for evidence that employers find the current law murky.

She asked Ms Wilkinson in the House yesterday if the Government was proposing to allow bosses to require proof of sickness on "unreasonable grounds".

Ms Wilkinson replied: "We do not insist on unreasonable grounds for anything. Employment law should be based on what is reasonable and what is fair to both the employer and employee."

TOUGHER TEST

* Bosses can ask workers for proof of sickness if they have "reasonable grounds" to suspect that the sickness is not genuine.
* The Government says removing "reasonable grounds" would make the law simpler and make it easier for bosses to demand proof from workers that they are sick.
* Bosses will still foot the doctor's bill, which will be a disincentive to abuse the system.