Sickness


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Employment law – Sickness

What are your rights to sick pay?

In most cases, your contract of employment will spell out what your rights are 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.

You may be entitled to Statutory Sick Pay (“SSP”), regardless of what is in your contract of employment. This could be in addition to company sick pay if your employer has a sick pay policy.

The payment limit of SSP is generally, 28 weeks in a 3 year period.  The weekly statutory sick pay amount is presently £92.05 per week as at 2017.

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 £116.00 (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.

Am I entitled to take time off work for hospital, dentist or other appointments?

Your employer might give you time off work to visit the doctor or dentist but they’re not legally required to do (whether paid or unpaid) unless your contract of employment says so, or because you suffer from a disability. Your employer can insist you make these visits outside work hours, take holiday leave or make the time up later on. You should check your contract of employment to see what rights you have.

If you have a medical or dental emergency requiring urgent treatment, this is likely to amount to a sickness absence (not a medical appointment), as will where you need to be admitted to hospital as an inpatient, for example to undergo an operation. In these scenarios, either statutory or contractual sick pay will be due.

If you are pregnant, you have a specific statutory right to reasonable time off work with pay to attend antenatal appointments made on the advice of a doctor, midwife or registered nurse. Antenatal care may include relaxation and parent craft classes as well as medical examinations.

If you are a prospective father, or the partner of a pregnant woman, you can take unpaid time off to attend up to two antenatal appointments.

Should my employer be making contact with me whilst I am signed off sick?

Yes, this can amount to fair and appropriate management by your employer, and indeed it is often beneficial to employees too so that there is not a feeling of being isolated or ignored.

Your employer needs to tread more carefully if your illness is one that could be aggravated by making contact (e.g. conditions such as stress, depression and anxiety, particularly work related). If it is not necessary to communicate with you at this time, and such communication causes you more distress, your employer could be acting unreasonably and in serious cases, may be grounds for your claiming  constructive dismissal.

Can I still be disciplined while I am off sick?

If there are pending disciplinary proceedings, your employer is not expected to put off a disciplinary hearing indefinitely simply because you are off sick. They should not, however, go ahead in your absence without very good cause. Your employer should only proceed to hearing if they have exhausted other avenues, for example, inviting you to make written submissions if you cannot be present, or trying to obtain an occupational health report on your ability to participate.

How easy is it for an employer dismiss me as a result of my 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 (and not be under any prior notice). In the absence of meeting this qualifying period, your employer can generally dismiss you without fear of a claim being made- unless you have a disability which counts as a “protected characteristic” under the Equality Act. Please see the link below or click here to skip to the disability discrimination page for more information on this, including what reasonable adjustments should be considered.

It is wrong to think you can never be dismissed, just because you have an illness. Your employer should, however, go to some lengths to find out about your current medical position, which would usually involve consultation with your medical advisers and possibly a referral to your employers own occupational health therapists or medical experts. Indeed, employers will often reserve the right in your contract of employment for their medical experts to be able to provide a second opinion on the state of your health. Whether or not such a right is reserved, you could be considered to be acting unreasonably if you refuse to agree to such a request (although your employer will be in a stronger position where there is a contractual right reserved).

You may especially find that you are asked to attend an examination by occupational health professionals where you are on long term sick leave. Any occupational health 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. Your employer can then make an assessment of your fitness for work. You should take legal advice if you do not agree with the assessment.

If your employer can show that it has taken all necessary and reasonable steps to ascertain the state of your health together with future prognosis, then they are more likely to be seen as acting reasonably should a decision be ultimately made to dismiss you on the grounds of ill health.

Although medical opinions will be important, an employer’s decision will not always be unfair if it goes against the recommendations of medical professionals. A tribunal would need to assess the reasonableness of your employer’s decision to dismiss you in all the circumstances, meaning that a dismissal could technically still be fair, even if you have been assessed as being fit to return to work. That said, 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.

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. Your employer should be careful to adhere to the correct disciplinary procedures (such as prior formal warnings) as an Employment Tribunal could otherwise well find that a dismissal is unfair on procedural grounds.

A Tribunal would also consider whether your ill-health or sickness was caused by your employer’s own actions. This could have a bearing on whether your employer’s ultimate decision to dismiss you was fair or unfair. Quite often, such an illness amounts to stress and anxiety due to pressure of work, or bullying and harassment by your employer.

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.

What if my employer has an absence and sickness policy?

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

  • 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 your employer has such a policy in place which has been drawn to your attention, you will be in a weaker position if you do not adhere to it.

Note: Your employer should have regard to the duty to make reasonable adjustments when issuing disciplinary warnings for sickness absence where you have a disability.  A blanket absence management policy, under which all employees (both disabled and non-disabled) are treated equally is  therefore capable of placing you (as a disabled employee) at a substantial disadvantage.

This means your employer may have to extend the time in which disciplinary action can be taken under its attendance management policy, and have particular regard to your periods of sickness absence. 

Can I easily be dismissed for capability reasons if I am contractually entitled to long-term disability benefits or PHI?

No. It has been held that a term must be implied into your contract of employment in these circumstances, that you cannot be dismissed for incapacity reasons where you have a contractual right to receive disability or PHI benefits from your employer. This applies even if your contract of employment had a termination clause which expressly reserved the right to terminate for incapacity.

What if I am sick whilst on holiday?

If you become sick during your holiday leave, you are entitled 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 I be forced to take holiday when I am sick?

You cannot be forced to take holiday while you are sick. This includes where you become ill during a holiday. 

Can I 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 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 my rights to full notice pay whilst on sick leave?

Please click here for our dedicated page on this.

 

For further advice on your sickness rights and a free consultation, please get in contact on 020 7100 5256 and ask to speak to Philip Landau or any member of the employment team, or email us.

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