Employment law – Sickness
What are your rights to sick pay?
In most cases, your contract of employment will spell out your rights to company sick pay, and over what period. There is no absolute entitlement to company sick pay, as this will be in your employer’s discretion.
If you are entitled to company sick pay, then this will “top up” your entitlement to Statutory Sick Pay (“SSP”), however the absence of a contractual provision, you are only entitled to receive SSP from your employer. The entitlement limit is generally, 28 weeks in a 3 year period. The weekly statutory sick pay level is presently £88.45 per week.
The qualifications for SSP are that you must:
- have 4 or more consecutive days of sickness (including Sundays and holidays) where you are incapable of carrying out work (so the first 3 “waiting days” do not qualify);
- notify the absence to your employer within their set deadlines- or within 7 days if they do not have one;
- supply evidence of incapacity, such as self-certificate or doctor’s certificate, known as a “fit note”;
- earn at least £112.00 (before tax) per week.
If you are off work again within 8 weeks of the first absence, then you do not need to clock up another 3 days before SSP becomes payable on the 4th day. These are known as “linked waiting days”.
There are a number of excluded employees who are not entitled to receive SSP. These include those taken on for a specified period of no more than 3 months, and employees who are pregnant and are sick during the maternity pay period. This is not an exhaustive list.
Any contractual remuneration paid 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.
Your employer may have reserved the right to amend or withdraw discretionary sick pay (in part or in whole) where performance or conduct concerns have been raised, or where you are subject to capability or disciplinary procedures. It is therefore advisable to check your employer’s sickness absence policy when (or before) you are signed off work.
When do I need a fit note from my GP, or can I self-certify my sickness?
You must provide your employer with a doctor’s “fit note” (previously called a sick note) if you are off sick for more than 7 days in a row (including non-working days). 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”.
Your employer can ask that you to “self-certify that you have been off sick, where this has been the case for up to 7 days. Employers will usually provide their own form for you to complete.
How easy is it for an employer dismiss you as a result of your sickness?
First and foremost, you need to be working with the same employer for 23 months and 3 weeks in order to qualify in making a claim for unfair dismissal. In the absence of qualifying, your employer can generally dismiss you without fear of a claim being made (unless you have a disability- see below).
Assuming you qualify, if an employer is to safeguard itself against a claim for unfair dismissal, it should go to some lengths to find out about your current medical position, which would usually involve consultation with your medical advisors and possibly a medical examination. Often, an employer will reserve the right in your contract of employment to have you examined by their medical experts, and even if they don’t, you could be considered to be acting unreasonably if you refuse to agree to this.
You may also find that you are asked to attend an examination by occupational health professionals, especially if you are on long term sick leave. The aim is to find out what the impact of work is on your health, and make sure you are fit for the work you do.
The report would usually cover the diagnosis, likely prognosis, treatment and timescale for any return to work, as well as detailing the duties you may be able to perform. The report should also give guidance on any reasonable adjustments to working arrangements that could be made to assist you. They will then make an assessment of your fitness for work, although it is important for you to take legal advice if you do not agree with their assessment.
If your employer can show that it has taken all necessary steps to properly find out about the state of your health and prognosis, then there is more likely to be a fair dismissal.
Where your sickness amounts to persistent short absences by 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. An employer should be careful to adhere to the correct disciplinary procedures (such as warnings) as a Tribunal could well find that a dismissal is otherwise unfair on procedural grounds.
The Tribunal will also consider whether the ill-health or sickness was caused by the employer’s actions. This may well have a bearing on whether an employer’s ultimate decision to dismiss you was fair or unfair. Please click here to go to the stress at work page.
If your sickness amounts to a disability under the Equality Act, you may have a claim for disability discrimination. Please click here to access the disability discrimination page.
Ultimately, if you can’t do your job because there are no reasonable adjustments that can be made, it may be fair for you to dismiss you, even if you have a disability.
What if my employer has an absence and sickness policy?
Authorised absence can often be dealt with by policies:
- requiring absent employees to phone in by a given time on each day of absence;
- having a return to work interview to ensure there are no underlying issues;
- taking disciplinary action if unexplained absence continues.
If an employer has such a policy, it will make their position stronger if an employee does not adhere to it.
Note: The Court of Appeal has ruled that an employer should have regard to the duty to make reasonable adjustments when issuing disciplinary warnings for sickness absence where there is a disability. The Court has said that an absence management policy, under which all employees (both disabled and non-disabled) are treated equally is capable of placing a disabled employee at a substantial disadvantage.
This means an employer may have to extend the point at which disciplinary action can be taken under its attendance management policy, and have regard to periods of sickness absence.
What if you are sick whilst on holiday?
If you become sick during your holiday leave, you are entitled to your employer to rearrange your holiday for another date later in the year. In practice this means that your employer will paying you sick pay rather than holiday pay for the period during which you were ill.
You will still need to follow normal sickness absence procedures, for example, reporting to your line manager or obtaining medical evidence of their illness, otherwise you may not qualify for company sick pay.
Can you be forced to take holiday when you are sick?
You cannot be forced to take holiday while you are sick. This includes where you become ill during a holiday.
Can you continue to accrue holiday while on sick leave?
Yes, you can. Sick leave and holiday leave have different functions – the former is to recover from illness, and the latter is for rest, relaxation and leisure. Accordingly, those on sick leave should still be entitled to accrue holiday. This follows a recent ruling from the European Court of Justice.
Can employees on long term sick leave carry unused holiday over to the next holiday year?
Yes, you can up to a maximum of 4 weeks. However, if you return to work before the end of the holiday year, but fail to take your holiday during the remainder of the year when you had an opportunity to do so, you would then lose the right to carry-over.
What are your rights to full notice pay whilst on sick leave?