10th August 2017

Employer’s Question: Sick pay and medical evidence from outside the UK

At a glance

One of our marketing assistants fell sick while on holiday in Spain. She has provided us with a doctor’s certificate issued from the hospital in Spain, in Spanish, stating she is unable to work for the next 6 weeks. Are we obliged to accept this as medical evidence for the purposes of paying sick pay?

From a statutory sick pay perspective, you cannot insist on medical evidence as a condition of paying SSP for the first seven days of an absence. However for longer absences, you are allowed to ask for reasonable evidence of the illness.  This does not necessarily mean that it has to be evidence from a UK doctor, the HMRC guidance states that it is up to the employer whether or not to accept the evidence provided and that a doctor’s fit note can still be requested if you have doubts.

For certificates issued abroad, HMRC will arrange a translation into English, but only where you disagree with your employee on their SSP entitlement. In other words, if you have doubts over their illness and the evidence provided and therefore believe that SSP may not be due to them, this service may become relevant.

If you have not been provided with a UK fit note and have reasonable doubts as to the validity of the medical evidence provided, you could choose not to pay SSP. If you do not accept the Spanish medical evidence, the employee can seek a formal decision on their entitlement to SSP from HMRC. However, it is likely that that HMRC may well accept a non-UK medical certificate if it was reasonable for the employee to submit that evidence in the circumstances. If your marketing assistant was incapacitated and in hospital in Spain, the chances are that she had little alternative other than to supply evidence from a local doctor.

With regard to contractual sick pay, you could make it a requirement that any payment of contractual sick pay beyond SSP that the employee provides a fit note from their UK doctor. It is possible that an individual may raise an indirect race discrimination argument if they are from another country and frequently travel there, however there may be an argument that this is justified if they are able to obtain a fit note on their return to the UK. However, if you applied the requirement with an element of discretion this may eliminate the risk.

In reality, there will usually be no doubt over the validity or contents of the non-UK medical evidence and so a policy requiring a UK fit note for contractual sick pay is probably unnecessary.

If you would like to understand more about the process that should be followed in a similar situation and you wish to discuss the issues in more detail, please contact Tessa Robinson by emailing Tessa or calling her on +44 (0)1293 558553.

This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this document.