Sickness at work - a guide for employees

1. The right to time off work
2. The right to receive sick pay
3. The right to accrue holiday
4. The right to have certain adjustments made to the workplace

These are explained below.

Do I have the right to time off work if I am sick?

Yes. If you’re an employee and you can’t attend work due to ill health then you have the right to take time off work. For the first six days of sickness absence you don’t need to submit proof of your illness but if you take seven days or more off work sick then you should obtain a doctor’s ‘fit note’ and provide a copy of this to your employer (you should keep the original).

You have to be an ’employee’, though.

If you’ve been absent from work for up to six days then your employer may ask you to fill in a form to confirm you’ve been off work sick for up to 7 days.

Do I have the right to sick pay if I’m off work sick?

There is no general common law right to receive pay during a period of sickness absence. However, when you’re off-work sick it is likely that you will be entitled to receive one of two payments:

1. Contractual sick pay (either full pay or reduced, depending on the contract terms)
2. Statutory sick pay (“SSP”)

Contractual sick pay

Generally, the first thing you should do is look at your employment contract or sickness absence policy to see what your rights are in terms of sick pay on a full or reduced basis. Section 1 of the Employment Rights Act 1996 requires employers to provide employees and workers with a written particulars of “any terms and conditions relating to incapacity for work due to sickness or injury, including any provision for sick pay”.

If the contractual sick pay is discretionary then this must be clearly stated in your employment contract. However, even where it is at an employer’s discretion to provide sick pay, it is governed by implied contractual terms and requires employers to be even-handed and rational in determining whether to provide and/or terminate discretionary sick pay. In the absence of an express contractual provision the courts will only imply a right to sick pay if the circumstances justify it.

If you are entitled to contractual sick pay, you should then check to see whether your employer has the right to withdraw or vary the sick pay that you’re entitled to receive (in part or in whole) where conduct or performance issues have been raised, or if you’re subject to a disciplinary or capability policy. You should also check your employer’s requirement with respect to medical evidence of incapacity. Generally, you should be permitted to self-certify but in regard to contractual sick pay employers can require for a fit note from the first day of absence however, they rarely do.

Statutory sick pay

You may also be entitled to the Statutory Sick Pay (“SSP”) scheme which entitles qualifying employees who are absent from work due to ill health to receive a minimum weekly payment regardless of what is in your contract of employment.

You are eligible for SSP if you:

• Are working under a contract of employment;
• Have 4 or more consecutive days of sickness (including Sundays and Holidays)
• Have notified your employee to your absence within 7 days
• Are incapable by reason of ill health from doing work which you would normally and reasonably be expected to perform in the course of your employment;
• Have submitted evidence of your incapacity as agreed with your employee as part of your contract of employment;

Statutory sick pay is available to all employees whose earnings are liable for Class 1 National Insurance contributions. This means in some instances workers will also be eligible for SSP. You must also have an average weekly warning of not less than the Lower Earnings Limit over the last eight weeks (the Lower Earnings Limit is £6,240 per annum as of March 2020 but you should check the Government’s rates and thresholds guidance in order to determine the specific rate at the required time).

SSP is not payable for the first 3 qualifying days, and it is generally up to the employer to decide which days of the week are qualifying days. However, if you have another sickness absence within the first 8 weeks of your initial absence you do not need to wait another 3 qualifying days before collecting SSP.

You should also be aware that SSP is subject to tax and National Insurance – check the HMRC guidance in order to find out more about this.

How can I receive per week in SSP?

The weekly SSP amount is £96.35 per week as of 6 April 2021 with a payment limit of 28 weeks in any 3-year period.

Am I excluded from receiving SSP?

You may not be entitled to receive SSP if:

• You are being engaged or employed by your employer for no more than 3 months
• You have already received your full 28 weeks of SSP entitlement
• You are pregnant and are sick during your maternity pay period

However, this list is not exhaustive.

Any contractual payment made to an employee for a day of sickness is to be offset against the SSP due for the same day. An employer can never pay you an amount in total which is less than the SSP due.

Coronavirus update

Starting in March 2020 the ongoing COVID-19 pandemic has led to a series of changes to the SSP scheme. These changes include:

• Situations where an employee may be held incapable of work where they are self-isolating to prevent the spread of the virus, or shielding due to serious underlying health conditions
• Removal of the prior need for 3 waiting days in COVID-19 cases

Recovery from HMRC of up to two weeks’ SSP per employee paid by small and medium employers in COVID-19 cases

Can I self-certify my sickness?

You can self-certify your sickness if your employer allows. Employers will usually provide their own form for you to complete or alternatively they can use the HMRC form SC2. However, for the purpose of claiming SSP, if your sickness absence lasts for longer than 7 days you will need to provide your employer with a fit note.

When do I need to obtain a fit note from my GP?

After 7 days of sickness absence in a consecutive period you must provide your employer with a doctor’s “fit note”.

The fit note will say whether you are “not fit for work” or “may be fit for work”. If it is the latter, a GP may suggest what changes need to take place and employers should certainly discuss any changes with you that may help you return to work. If there is no agreement on these changes, then you must be treated as “not fit for work”. If a doctor does not provide a fit note it is up to your employer to decide whether to accept alternatives and what alternatives they will accept.

Once the fit note has expired you should either obtain a new fit note or return to work (if you have recovered from your period of ill health).

Can I take time off work for hospital appointments, dental appointments, or other appointments?

Legally your employer is not required to give you time off for doctor or dentist visits unless it explicitly states so in your employment contract or if you suffer from a disability , in which case a refusal could give rise to a claim for disability discrimination.

If you experience a medical emergency or are admitted into the hospital as an inpatient this will generally be treated as a sickness absence and either contractual or statutory sick pay could be owed.

If you are pregnant, you have a statutory right to reasonable paid time off work to attend any prenatal appointments that are made on advice of your doctors or midwife. These prenatal appointments can include things such as medical examinations, birthing classes, etc. As the father or partner of a pregnant women you are also entitled to take unpaid time off work to attend up to two prenatal appointments.

If you are self-certifying as unfit to work then you do not have to inform your employer what the reason is for your ill health, but it may help to inform your employer why you’re sick even so (as it allows the employer to understand why you’re not attending work and how long you might be off work for).

If you are signed off as unfit to work by a doctor (via a fit note) then your doctor may specify on the fit note a reason as to why you are unfit to work, but they are not obliged to. Again, however, it may be good practice to include a broad reason for your ill health on the fit note so that your employer is aware of the problem that you are suffering from – this can be helpful, for example, to allow the employer to understand what adjustments may need to be put in place to allow you to return for work.

Can my employer force me to come in when I’m sick?

No, your employer cannot force you to come into work if you are sick.

If you have been absent from work for a long period of time then your employer may ask you to undertake an independent medical examination in order to establish whether you are unwell and, if so, what illness you are suffering from (among other things).

What are you allowed to do when off sick?

When you are unfit to work (whether self-certifying as ill or under a fit note) then you cannot work, it is that simple. You may, however, do other things that you would normally do, such as go to the gym, go to the pub with friends, go to the cinema, or undertake other normal social/cultural activities.

When do I have to inform my employer that I am sick and can’t attend work?

You should aim to inform your employer at the earliest possible convenience but at the very latest before you are due to start work. You should also check your employment contract or sickness absence policy and comply with any deadlines stipulated within those.

It is common to require employees to notify the employer that they are unwell at least 30 minutes before they are due to start work, although this can be longer if, for example, cover needs to be arranged.

What evidence do I have to provide my employer with to prove that I’m sick?

Generally, it is at your employer’s discretion as to what evidence they require from you. During the first 7 days of a sickness absence, you can self-certify your sickness by providing your employer with a description of your symptoms and an estimate of when you will be able to return to work. In cases where your sickness absence extends longer than 7 days your employer may require you to provide them with a fit note from your GP which confirms that you are unfit for work.

Can my employer contact me when I’m absent due to sickness at work?

Being on sick leave does not release you as an employee from all obligations towards your employer. You are still obliged to obey your employer’s lawful and reasonable orders while your off work on sickness absence, except to the extent that your ill health makes compliance impossible.

It is common practise for employers to expect their employers to provide daily updates on their well-being during short term absences. In cases of longer-term absences, it might be more reasonable to have weekly check-ins, but you should check your employment contract or sickness absence policy for extra guidance. If you’re physically or mentally incapable of engaging in contact with your employer whilst you’re off work sick then you should notify your employer of this fact (and, preferably, obtain a fit note or doctor’s note confirming this).

Your employer owes you a duty of care, so it is reasonable for there to be some contact to check on your wellbeing while you are sick from work. Another thing to consider when judging whether an amount of contact is reasonable is the circumstances for the sickness absence. Regularly contacting an employee who is off sick with a cold would likely be considered reasonable while regularly contacting an employee who is off sick with job related stress might not be. If it is not necessary to be contacting you, and the contact is causing you more distress you might have grounds for a constructive dismissal case.

Can my employer ask me to do work while I’m off work sick?

Again, being on sick leave does not release you from all obligations towards your employer, it depends on what is reasonable. However, while answering questions on previous work you were doing might be reasonable it is likely that asking you to do substantial work while on sickness absence would be unreasonable. It is generally good practice for your employer to confirm how much you feel able to do before making any requests, but you should check your employment contract or sickness absence policy for more details.

Can my employer continue a disciplinary process while I’m off work sick?

Your employer can continue disciplinary proceedings if you are off work sick and will not be expected to postpone this indefinitely. However, your employer should take as much care as reasonably possible in the circumstances in order to avoid treating you unfairly during the disciplinary process – for example, if you cannot attend a scheduled hearing then your employer will generally be expected to postpone the hearing to a time which is mutually convenient to you and your employer. Your employer should only proceed with a disciplinary hearing in your absence if they have tried their best to accommodate your sickness absence, for example by allowing written submissions.

A failure on the part of your employer to act reasonably may amount to unfair dismissal or even disability discrimination. Consultation with the employee is central to the fairness of any dismissal for ill-health, as established in East Lindsey District Council v Daubney where the fact that the employee had not been consulted rendered the dismissal unfair.

Can my employer dismiss me while I’m off work sick?

The short answer to this question is ‘yes’, just because you have an illness does not mean you can’t be dismissed. However, whether a dismissal would be fair or not would depend upon the circumstances in which you are dismissed. If you think that your dismissal from work due to ill health has been unfair and/or discriminatory then you can potentially bring your case to an Employment Tribunal. To qualify in making an unfair dismissal claim you need to have worked for your employer for at least 23 months and 3 weeks. If you don’t meet the qualifying period your employer can generally dismiss you with fear of a claim, except in situations where you have a disability as this is a protected characteristic under the Equality Act 2010.

Is it easy for my employer to dismiss me if I’m off work sick?

If your employer can show that it has taken all reasonable and necessary steps to determine the state of your current health as well as your future prognosis, then a decision to dismiss you on the grounds of ill health is more likely to be seeing as reasonable. This would likely involve consultation with your medical advisers and possibly a referral to your employer’s occupational health professional or medical experts.

It is also worth noting that in your employment contract employers will often reserve the right to seek a second opinion on your medical position from their own medical experts. However, even if they do not if you refuse to agree to such as request you could be found to be acting unreasonably.

In cases of long-term sickness absence, you will likely be referred to an occupational health professional. Generally, they will conduct an examination and provide your employer with a report detailing the diagnosis, treatment, and timescale for a return to work. They will also provide guidance on if or what kind of duties you might be able to provide and any reasonable adjustments your employer can make to assist you in your return to work.

In cases of continuous short sickness absences due to unconnected minor ailments, you should ideally be told what level of attendance you are expected to attain, and that dismissal may follow if there is no sufficient improvement. Your employer take care to observe to the correct disciplinary procedures as the Employment Tribunal could otherwise find the dismissal procedurally unfair.

Although medical opinions will be important, an employer’s decision will not always be unfair if it goes against the recommendations of medical professionals. However, if you have multiple medical opinions which all agree that you are ready to return to work, then your employer’s decision is more likely to be deemed unreasonable. Unfortunately, whether decision to dismiss you based on grounds of ill health is reasonable determines largely on the individual facts of your case. Please get in touch with Redmans Solicitors to learn more.

What do I do if my employer has a sickness absence policy?

It’s important to be aware of any sickness absence policies your employer might have to prevent any disciplinary procedures from arising should you not adhere to it.

Authorised absence can often be dealt with by policies by your employer, such as:

• requiring employees to phone in by a certain time on each day of their sickness absence
• having an interview upon return to work to ensure there are no underlying issues
• taking disciplinary action if a continuous absence is unexplained

Can I be dismissed for capability/sickness reasons if I’m off work-long term on sickness absence, but I am entitled to disability benefits or Private Health Insurance?

No, you cannot. In these circumstances it has been held that a term must be implied into your employment contract that where you have a contractual right to receive disability benefits or Private Health Insurance from your employer you cannot be dismissed for capacity reasons. This term applies even if your employment contract has a termination clause which expressly reserves the right to terminate an employee for incapacity reasons.

Returning to work after a period of long-term sick leave

If you’ve been off work sick for more than 4 weeks then you may be considered to be off work on long-term sickness absence. As detailed above, you’re still entitled to take or accrue annual leave during a period of long-term sickness absence.

If you’re off work on long-term sick leave then you can ask your employer or GP to refer you to a scheme called Fit for Work which can provide you with health advice, advice on returning to work, and a ‘fitness for work assessment’.

Can I agree a phased return to work with my employer?

Adjustments such as a phased return to work may be beneficial in rehabilitating you after an extended period of sickness absence. While discretion to allow a phased return lies with the employer, agreeing to any proposed adjustments will speak volumes to the employer’s reasonableness in any subsequent unfair dismissal claim. You should also be aware that current legislation provides that during a phased return to work employees are only entitled to SSP on the days they do work.

If I agree a phased return to work can my employer reduce my salary to reflect reduced hours?

Unless it is stipulated in the employment contract, if after a sickness absence of less than 12 months you return to work part time you are entitled to the same rate of pay and benefits as you previously had working fulltime on a pro-rata basis. This means that essentially your employer cannot subject you to any detriment just because you are now working part time rather than full time.

Can I do work for anyone else if I’m off work on sick leave?

Working a second job while on sick leave would generally be considered gross misconduct, especially if the job is being done during the hours you would normally be working at your first job. It is however possible that you can be medically unfit for work one under one contract and still capable of work under another contract. Although this is assuming the 2 roles are different in nature as you may have difficulty explaining the inconsistency between only being unfit for one role if they are too similar. You should also be sure to check your employment contract to see whether you can work for a second employment without consent.

What happens if I’m sick while I’m supposed to be on holiday?

If you fall sick during or before any period of statutory holiday from work then you have the right to cancel that holiday, take that holiday at a later date, and take time off work as sick leave instead. This means that your employer will paying you sick pay rather than holiday pay for the period during which you were on sickness absence. The key issue is whether you would have been fit to work considering your sickness. For example, a sprained ankle might prevent you from enjoying your holiday, but it would not prevent you from working your office job. You should also ensure you comply with all normal sickness absence procedures such as providing medical evidence or reporting to your supervisor on a daily basis to avoid any complications with receiving your sick pay.

Can I be forced to take holiday if I’m sick?

No, your employer cannot force you to take holiday while you are sick. This includes situations where you are already on holidays and become sick. However, if you wish to take your annual leave during a period of sick leave you may do so and you would still be entitled to receive SSP during your annual leave. Case law also suggests that in those circumstances you would be entitled to your full pay so cautious employers should consider paying their employee SSP on top of their normal pay during these periods of leave.

Do I accrue holiday while I’m on sick leave?

Yes, you do. Employees that are prevented from taking their holiday because of sickness must be allowed to take it upon their return to work. The purpose of sick leave and holiday leave are entirely different, one is to recover from illness, and the other is for rest and leisure.

If I’m on long-term sick leave, can I carry over unused holiday to the next holiday year?

Your employer has two options for employees on long-term sickness absence with regards to holidays:

• To allow the worker to take paid holiday during sick leave; or
• To allow the worker to take the holiday on their return to work (in the next annual leave year if necessary)

You can carry over a maximum of 4 weeks of unused holidays regards of whether you were unable or unwilling to take your annual leave during sickness absence. However, if you return to work before the end of the holiday year but do not take your holiday during the remainder of the year you then forfeit your carry to carry over. You also do not need to provide any evidence that you were unable to take your annual leave during your sickness absence to guarantee your right to carry over any unused holiday.

Do I have to call in sick every day?

If you are self-certifying as sick then you should call in sick every day that you are unwell, otherwise you will be absent from work without leave.

If you have obtained a fit note from your doctor then you do not have to call in sick every day – simply provide the fit note to your employer and you will then be signed off as unfit to work until the expiry of your fit note.

What are my rights to notice pay if I’m off work sick?

Taking sickness absence is not a fundamental breach of contract so you would generally be entitled to receive notice in the event your employment is terminated. The exception to this is where you are dismissed on the grounds of gross misconduct, which could occur if you do not follow your employer’s sickness absence policies. The amount of notice you are entitled to will be whichever is greater of either the amount stipulated in your employment contract or the statutory requirement of 1 week for every year worked (with a maximum of 12 weeks). Unless your contract states otherwise your rights during the notice period will be the same as if you were not on sickness absence. You also may have the right to SSP subject to the normal qualifying criteria and the right to contractual sick pay if you have not exhausted your entitlements.

Examples of successful Employment Tribunal claims related to sick leave

• Employee with Asperger’s syndrome wins disability discrimination claim after being fired for sickness absence (Mr I Wells v The Governing Body of Great Yarmouth High School – ET/3401100/2015) – download the Tribunal judgment here, read our analysis of the case here
• Employment Tribunal rules that decision to withhold company sick pay for disabled employee was discriminatory (Mr A Singh v NFT Distribution Operations Ltd: 1401292/2018) – download the Tribunal judgment here, read our analysis of the case here
• Disabled worker wins £10,000 after being sacked for sickness absence caused by seizures (Sykes v Nails Inc ET/1801697/2016) – download the Tribunal judgment here, read our analysis of the case here
• Disabled employee wins claim for almost £20,000 after being fired for losing his temper at work (Dytkowski v Brand FB Ltd ET/2402856/19) – download the Tribunal judgment here, read our analysis of the case here

What kind of compensation can I receive if I bring a claim related to my sick leave?

This depends on what type of claim you might have – typical claims in a sickness-related dispute might involve an unfair dismissal claim (if you’re being dismissed due to a prolonged period of sickness absence), constructive dismissal (if you’re being treated unfairly because of a period of sickness absence), or disability discrimination (if any unfair treatment relates to a disability that you or another person has).

Compensation for constructive dismissal/unfair dismissal cases

If you are successful with a claim for constructive dismissal or unfair dismissal then normally the main remedy available to you is for loss of earnings, in addition to any basic award.

Learn more about constructive dismissal claims here, and unfair dismissal claims here.

Compensation for disability discrimination cases

If you are successful with a claim for disability discrimination in the Employment Tribunal then you can normally pursue the following kinds of compensation:

1. Any loss of earnings that you have suffered as a result of the discrimination that you have suffered (for example, if you’ve lost out on a bonus or you have had to resign because of the discrimination);
2. Any injury to feelings that you have suffered due to the discrimination;
3. Any personal injury that you have suffered (for example, if you have suffered Post Traumatic Stress Disorder or depression because of the discrimination);
4. Aggravated damages (this is a rare award and is normally relevant if there has been particularly bad behaviour on your employer’s part)