Can an employer make sick pay conditional on being satisfied the sickness is “genuine”?

Yes, provided this is clearly stated in the written contract terms. Occupational (as opposed to statutory) sick pay can be conditional on management being satisfied that an absence is “genuine”, but the contract term must be clear and unambiguous, and the employer must make its assessment of the genuineness of the absence in good faith and not irrationally, taking into account the duty of mutual trust and confidence. The employer is not allowed to decide that an absence is not genuine without proper evidence. For example:

The case of Merseyrail Electrics 2002 v Taylor [2007] UKEAT/162/07, is another good example. In this case, sickness absence rules allowed the employer to deny payment if it had “any doubt that the absence was due to reasons other than health”. The employee was off work with a stress-related condition that occurred shortly after a dispute over working hours. Given the timing of the two events, the employer withheld sick pay. The employee self-certified for a week and then provided GP certificates recording her condition covering the rest of her absence. The EAT said that, although the employer might have had doubts at first while the employee was self-certifying, those doubts should have been resolved by the GP certificates, which should have been accepted at face value, unless there was some contradictory evidence.

Where there is good reason to suspect that sickness absence is not genuine, the employer can look beyond the GP certificate (Fit Note). Misuse of a medical certificate is a disciplinary offence.

An employer is not obliged to consider an employee’s financial position when deciding whether to pay discretionary sick pay: