If an employee is ill, they are by law permitted to take time off work to recover. Depending on the length of absence, they can either self-certify or they may have to get what used to be known as a sick note (now called a ‘fit note’) from their doctor. If a sick note is required, this should be referred to by the employer to support with the employee’s return to work.
The following guide sets out the purpose of the sick note, now known as the ‘fit note’, including the rules on self-certifying and when a fit note is needed, as well as the requirements on employers to make changes to support employees with the return to work.
When is a sick note needed?
Under the normal rules, if someone is absent from work for seven or fewer consecutive days, including non-working days such as weekends and bank holidays, they are not required to give their employer a sick note. Instead, on their return to work, you can ask them to self-certify to confirm their absence due to illness.
The return to work process should be detailed in the organisation’s absence policy, specifying the information that will be required from the employee which will be added to their personnel file. This would usually include the dates of absence and reason for absence. To ensure consistency in the information gathered, employers should use a return to work form, the employee’s statement of sickness (SC2) form on GOV.UK. or as a minimum, ask that the employee submits the details of absence in writing, via email or letter.
There are some circumstances where the employee will not be able to self-certify and where they will need to provide official evidence that they are, or have been, poorly, and are now fit and able to return to work.
This means if they have been ill for more than seven consecutive days and have taken sick leave, they are under an obligation to provide you with a fit note to receive statutory sick pay or benefit payments.
GPs are expected to issue a fit note free of charge for anyone for whom they provide clinical care where that person has been ill for more than seven days in a row and have as a result been absent from work. They are not, however, obliged to do so unless the patient has been ill for more than the required period, or in some cases, GPs may charge a fee for a private medical certificate if requested earlier than seven days of illness.
COVID concession from 17 December 2021
The Statutory Sick Pay Regulations 2021 are now in force. The new rules have been implemented by the government to allow workers to self-certify for the first 28 days of sickness absence, and will apply only to absences due to illness that started either before 17 December 2021 and on that date lasted no longer than 7 days, or where the period of sickness absence started on or after 17 December 2021 and lasts until 26 January 2022. The measure has been implemented to alleviate pressure on GPs to issue fit notes during the pandemic and is due to end on 26 January 2022, although some believe this may be extended.
What is a sick note?
A sick note is an official document or form from a GP or hospital doctor to certify whether an employee is either ‘not fit for work’ or ‘may be fit for work’.
The sick note will also set out the nature of the condition for which the patient has been absent from work.
If someone is certified as ‘may be fit for work’, the medical practitioner completing the form may indicate what changes need to be made to help them return to work. The note will also specify the prognosis period of the illness, and whether or not a further assessment of fitness for work will need to be made at the end of this period.
Employers should consider the recommendations on the fit note to facilitate the employee’s return to work.
If the worker has a disability, under the Equality Act 2010 the employer is required to make reasonable adjustments to ensure they are not substantially disadvantaged when doing their job. Where it is not possible to implement or work to the recommendations, the fit note will change from ‘might be fit for work’ to ‘not fit for work’. The employee will not then be required to obtain a new fit note.
In some circumstances, the worker may be able to obtain a document akin to a sick note from a different professional, such as a physiotherapist or occupational therapist. This is known as an Allied Health Professionals (AHP) report. The employer, however, will need to agree to accept an AHP report by way of alternative to a sick note from the GP or hospital doctor.
Returning to work after illness
The fit note does not cover a ‘fit for work’ option, as such the worker does not need a fit note to confirm they can return to work after illness.
However, workers should not return to work before the date on the fit note if the GP has advised them to remain off for the full period as noted on the fit note and the doctor has stated they want to see them again.
Employees do not need to be fully recovered to return to work and in many cases, employees can feel ready and able to return to work before the date on the fit note.
In such instances, the worker will first need to discuss with their employer if it is possible to return to work before the date on the fit note.
The employer may stipulate in its absence policy that professional medical advice is needed in writing to verify that they are fit and able to resume work. This would not be covered by a standard fit note, and instead, the worker may need a private medical certificate or the employer may require that they attend an occupational therapist for a professional opinion.
The employer would also be expected to carry out a risk assessment to determine if an early return could be accommodated as this may require changes to be made. For example, whether a phased return to work would be appropriate, varying working hours temporarily or giving support to do the job, such as avoiding heavy lifting.
In some circumstances, the employer may request a doctor’s report to find out more about the employee’s condition and health, for example, to assess whether the employee is fit to carry out their work, to prevent health and safety risks and prevent disability discrimination. The employer must have the employee’s consent for such a report. In agreeing to a medical report, the employee can ask their doctor not to give information they think could be damaging or is not relevant, ask to see the doctor’s report first and not agree to the doctor’s report being shared with their employer if they disagree with what it says.
If the employee does not wish the employer to see their medical information, the employer must base their decision on the information they have.
If the employer does not agree to an early return, perhaps due to the risk assessment or issues with any adjustments that may need to be made, the worker would need to stay off until the date on the fit note.
Supporting the return to work
The premise of the fit note is that employees may not need to be at 100% health to return to work, and that resuming duties may in some circumstances support recovery.
Where a sick note indicates that an employee ‘may be fit for work’, the employer should explore any changes that may need to be made to support the return to work.
Where a GP or doctor has certified that the worker may be able to return to work, as previously indicated, the sick note will often indicate what type of changes may need to be made. These include the following:
- A phased return to work, for example, part-time to full-time
- Altered hours, for example, fewer hours or flexible working hours
- Amended duties, for example, nothing involving physical activity
- Workplace adaptations, for example, the provision of specialised equipment, such as an ergonomically designed chair where you have been off sick with back problems
The sick note can also include detailed comments on the functional effects of their condition and how any suggested changes will help. However, in the event that no agreement can be reached between the employer and the worker as to any suitable changes, they should continue to be treated as unfit for work.
Disabilities & reasonable adjustments
Where there is a delay in returning to work is related to a disability, by law the employer is required to make reasonable adjustments in the workplace to ensure that the worker is not substantially disadvantaged when carrying out their job.
Workers will be treated as having a disability under the Equality Act 2010 where they have a physical or mental impairment, and that impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. The impairment is long-term if it has lasted for at least 12 months, or is likely to last for at least 12 months, or is recurring.
Where they have a disability, any failure by their employer to make reasonable adjustments to support the return to work could amount to disability discrimination for which they can make a claim to an employment tribunal.
What constitutes reasonable adjustments will depend on a number of factors, including the nature of the work, the type of workplace environment and the size of the organisation and the resources it has available to make the reasonable adjustments. Examples of reasonable adjustments could include installing a disability ramp for wheelchair users, providing specialised equipment or modifying performance targets, for example, due to disability-related fatigue.
The employer is not, however, required to change the basic nature of the worker’s job.
Employees should not be asked to pay for the adjustments to be made. Government grants may be available to help cover the costs of practical support in the workplace under the Access to Work scheme. A grant through this scheme can be used to fund special equipment, adaptations or support worker services to help you return to work.
Sick pay entitlement
Statutory sick pay (SSP) may be payable if a worker is too ill to work and they have been off work for four or more consecutive days, including non-working days. SSP starts on the fourth day. SSP is payable for eligible workers from their first day of absence where their absence is due to or relating to COVID-19. This applies to each day of their COVID-related absence.
To qualify for SSP, the worker will need to be earning an average of least £120 per week and must also have notified their employer of their illness within any specified timeframe under the terms of their contract, or within seven days.
SSP is payable in line with the employee’s standard working pattern, known as ‘qualifying days’ and payable on the employee’s usual payday, and is subject to the usual deductions for tax and national insurance.
Employers may also offer contractual sick pay terms, the terms of which should be specified in the employment contract.
Sickness absence & holiday entitlement
During a period of sickness absence, the worker will continue to accrue their statutory holiday entitlement, regardless of how long they are absent.
In circumstances where the worker falls ill just prior to or during any period of annual leave, they are entitled to take this as sick leave instead. The employer cannot force a worker to take annual leave if they are eligible for sick leave. However, they may be able to take paid holiday for any time that they are off work sick, for example, where you do not qualify for sick pay.
DavidsonMorris are experienced employment law specialists offering guidance and support to employers on all aspects of workforce management, including managing absences due to ill-health and sickness.
We have particular expertise in advising on disability discrimination and reducing the risk of unfavourable treatment and discrimination at work relating to reasonable adjustments and supporting the return to work.
Sick note FAQs
How long can you be off sick without a note?
Under standard rules, employees can be off for up to 7 consecutive days without needing a sick note. This period has been temporarily extended to 28 days between 17 December 2021 and 22 January 2022.
Can an employer contact someone off work sick?
While there are no specific rules on contacting employees off sick, employers should act reasonably, for example considering the length and reason of the absence.
What evidence should ask from an employee returning from sick leave?
For the first 7 days of absence, the employer cannot ask for a fit or sick note. After this period, the employer can request a GP's medical certificate to confirm the individual has been signed off and it unfit for work.
Last updated: 20 December 2021