What are your employment rights while off work due to sickness absence?
Statutory Sick Pay is an entitlement for qualifying employees who are off work due to sickness.
Many employers offer enhanced sick pay to their employees under their contract of employment. You should check your contract or organisation’s sickness policy to find out if you have an additional contractual entitlement to sick pay.
What is Statutory Sick Pay?
Statutory Sick Pay (SSP) is set at a flat, weekly rate of £94.25 (as at October 2019), up to a maximum of 28 weeks.
Eligibility requirements apply. To qualify for SSP, you have to earn at least £118.00 (before tax) on average per week.
The absence period must be a minimum of 4 consecutive days of sickness (including non-working days such as Sundays and holidays) where you are unable to perform work.
You have to notify your employer in line with their absence notification process and you have to provide evidence of your sickness, either in the form of a fit note if the absence was more than 7 days or by self-certifying, if the absence was less than 7 days.
The first 3 days will be classed as a ‘waiting’ period, with SSP becoming payable on the fourth day. If you are absent again within 8 weeks, you do not have to wait 3 days again for SSP.
Statutory sick pay is not available to all employees, for example those working for a specified period of up to 3 months are excluded, and you will not be entitled to SSP if you are receiving Statutory Maternity Pay.
If you have had three years or more of linked absences – at least 4 days off work sick within 8 weeks of another period of taking at least 4 days off work sick – you may not be eligible for SSP.
Statutory sick pay is capped at 28 weeks after which the employee may apply for employment and support allowance (ESA).
What are the rules for contractual Sick Pay?
Where employers offer an enhanced sick pay package, it can often involve paying employees their full salary for a fixed period of absence and then switching to SSP once this fixed period is over.
Employers are not required by law to provide additional sick pay over and above SSP. This means where they do offer company sick pay, they can set the terms, which should be stated in the contract of employment or sickness policy. For example, this could include a qualifying requirement for minimum service or to have successfully completed your probationary period. Employers must ensure they apply any policy fairly, consistently and lawfully, or risk allegations of discrimination.
If your employer does not offer contractual sick pay, they must comply with the rules and your rights relating to Statutory Sick Pay. Your employer cannot pay you less than your entitlement under SSP. They are also not required to pay you sick pay if you have already received 28 weeks of SSP.
Can I be dismissed for being sick?
In some circumstances, your employer may be able to dismiss you for sickness absence where your poor attendance is impacting the organisation’s ability to function effectively, for example, if you have a persistent or long-term illness preventing you from performing your role.
This means you could be at risk of dismissal due to poor attendance and persistent sickness absence, even where your absences are due to genuine illness and are certified as such. Your employer will, however, have to follow a fair and lawful process when handling the issue or risk a claim for unfair dismissal on procedural grounds.
This could include the correct and appropriate use of an absence trigger system and warnings if the complaint relates to high levels of short sickness absences that are not connected by reason.
If you have triggered the absence warning system, you may be asked to attend a meeting to discuss your poor attendance. You have the right to be accompanied to this meeting by a colleague or trade union representative.
It will be important to prepare well for the meeting. You should be given details of your absence record in advance of the meeting – you should request this if not. Cross-reference your employer’s records with your own and prepare to give detail on the reasons for the absences. Also consider your absence in the context of your entire employment record and whether has been deterioration and how this can be addressed and if your employer can support.
If the decision is not in your favour, you must be given the opportunity to appeal.
In the case of long-term sickness absence, your employer should consider ways to support you with a return to work, such as referring you to an occupational health therapist, and also give you reasonable time to recover from your illness, before commencing disciplinary proceedings against you.
If you have a disability and are dismissed as a result, this could be deemed unlawful discrimination and could give cause for a tribunal claim against your employer. You would normally have at least two years’ continuous service to be able to bring a claim for unfair dismissal.
Note also that pretending to be ill when you are not would be misconduct and if discovered, is likely to have disciplinary consequences.
How long can I self certify for?
If you are ill off work for 7 days or less, including non-working days, you can ‘self certify’ by confirming to your employer on your return your reason for absence. This means you do not need to provide a fit note or other proof of sickness from a medical professional.
The details of how you should provide this information should be in your organisation’s sickness policy.
If you are off ill for more than 7 days, you will need to provide a ‘fit note’ on your return to work.
What is a fit note?
If you have been off work ill for 7 consecutive days or more, you will need to give your employer a fit note on your return to work.
Previously known as a sick note, a fit note is a document from a GP or hospital doctor advising of your health status. It will state whether you are “not fit for work” or “may be fit for work”. If deemed “may be fit for work”, your employer should discuss how to support with your return to work.
Fit notes are ordinarily free if requested after 7 days’ of sickness absence, but there may be a charge if you ask for one sooner. You should keep the original, and give a copy to your employer.
Note that the 7-day period includes non-working days, such as weekends and bank holidays.
What if I am sick while on holiday?
Sick leave and holiday leave are different entitlements. This means if you are ill just before or during annual leave, you can take that time back to use as annual leave. Your employer cannot force you to take the time off as holiday if you were ill.
The effect is that you have taken sick leave and been paid sick pay for the time you were ill while absent.
Can my employer contact me while I’m on sick leave?
The law does not prohibit employers from contacting employees on sick leave and ACAS guidance states there should be regular contact between an employer and an absent employee.
Maintaining contact can be beneficial for employees if your employer uses it to update you on what entitlements you are receiving (given this changes as sick leave goes on), to look for opportunities to support your recovery and return to work and to update on changes within the organisation. Your employer may also be genuinely concerned for your wellbeing.
Ideally, you should agree with your employer a level of contact agreeable to you both, taking into account any challenges or sensitivities in the circumstances, for example, if you are absent due to work-related stress, frequent contact may not be in the best interest of your recovery.
What counts as long-term sickness?
Generally, if you are absent from work for four weeks or more, this would be classed as being on long-term sick leave.
The four-week period does not have to be a single continuous absence. Employers can ‘link’ absence periods that are at least four days in duration and eight weeks apart or less.
Employees on long-term sick leave also continue to accrue annual leave and are entitled to take this time during their sickness absence. You can also carry over up to 4 weeks of unused holiday to the next holiday year while you have been on long-term sick leave. You lose the right to carry over if you return to work before the end of the holiday year and do not use your full entitlement.
During long-term sickness absence, your employer should take proactive steps to maintain contact with you and to support your return to work.
You may under your employment contract be required to attend an examination by occupational health professionals to give your employer an informed understanding of your diagnosis, likely prognosis, treatment and timescale for any return to work, as well as detailing the duties you may be able to perform.
If you have a disability, your employer has a specific duty to support you in the workplace and make reasonable adjustments to remove any disadvantage in your ability to carry out your role. Dismissal because of a disability may be unlawful discrimination.
Employees on sick leave can be dismissed by reason of their absence, provided the employer has met certain requirements. The employer must have given you reasonable time to recover from your illness, they must have consulted with you about your return to work and if your health will improve, and they must also have considered ways to support your return to work, for example under different arrangements such as flexible working.
Failure to meet these conditions could mean you have a claim for unfair dismissal.
Do you have a question about sickness absence?
If you are ill, worries about your job can be hugely stressful to deal with. At DavidsonMorris, we are experienced in advising employees concerned about the impact of ill health and sickness absence on their employment rights. For advice and support, contact our employment law specialists.
