Your employment rights when you’re sick

Adam Bernstein

Writer/researcher for independent businesses.

Your employment rights when you’re sick

“ “The minimum pay an employee is entitled to during sickness absence is statutory sick pay (SSP).

It’s a simple fact of life that people can feel under the weather or sick from time to time. Thankfully, it is rarely serious and they soon recover. But for those employed, when they’re feeling ill, regardless of the reason, work is the last thing they want to think about. For them, it helps to understand their rights and obligations.

Every employer should have policies and procedures covering sickness absence to clarify employees’ rights and explain what employees must do to report any illness and throughout their absence. Policies are bespoke, but there are some general points to bear in mind.

Informing the employer

If you’re unwell, the fi rst step is to notify your employer so they know you will not be working and can plan for your absence and arrange appropriate cover. You should try to do this as soon as possible, but no later than the start time of your working day. Your employment contract or the company’s policy on sickness absence will confi rm a time by which you must report your absence.

You must report your absence for the fi rst seven days of your illness. Known as ‘selfcertifi cation,’ you effectively deem yourself unfi t for work and inform your employer of the same with an estimation of when you expect to be able to return.

If after seven days (including nonworking days), you still consider yourself too unwell to work, you will be required to provide a ‘fi t note’ from your doctor or another registered healthcare professional. This should start from your eighth day of sickness absence and will confi rm how long your doctor or registered healthcare professional expects you to be off.

If you are not fi t to return to work at the expiry of a fi t note, you will need a further fi t note to cover your ongoing absence.

If you do not provide a fi t note, your employer can withhold your sick pay on the basis that they are not satisfi ed you are unwell and cannot attend work. An employer may also have grounds to treat your absence as unauthorised, without contrary information, instigating its disciplinary procedure.

Sick pay

The minimum pay an employee is entitled to during sickness absence is statutory sick pay (SSP). The system in place for payment of statutory sick pay can appear complex, but in summary, it entitles eligible employees absent from work due to incapacity who meet qualifying conditions to receive a weekly statutory sick pay payment. SSP is limited to a maximum of 28 weeks. You can calculate your specifi c entitlement online at gov.uk — search for Calculate your employee’s statutory sick pay.

The qualifying conditions, which are set out in sections 151 —154 of the Social Security Contributions and Benefi ts Act 1992, state that you must:

● Have four or more consecutive days of

sickness, including weekends and holidays, where you are incapable of carrying out work (i.e. the fi rst three days do not qualify for statutory sick pay and are generally dubbed ‘waiting days’)

● Notify your employer of your sickness

absence within their set deadlines (i.e. as per your contract of employment or internal policies). If your employer does not have a set deadline, you must notify them within seven days.

● Supply evidence of incapacity (i.e.

through self-certifi cation or a fi t note).

● Earn at least £123.00 (before tax) per

week.

SSP is the minimum and employees may very well be entitled to higher payments during periods of sickness absence. Usually, an employee’s contract of employment will confi rm what their sick pay entitlement is, whether statutory sick pay or what is generally known as ‘company sick pay’ — some employers offer over and above the statutory entitlement. If employees are entitled to company sick pay, this will be paid inclusive of statutory sick pay, not in addition.

Medical appointments

Your employer is not legally required to give you time off for a medical appointment (paid or unpaid) unless you need to attend such appointments in connection with a disability. That being said, if it is confi rmed within your contract of employment that you will be entitled to time off work to attend a medical appointment, your employer is obliged to let you do so and pay you in accordance with this clause; they would be in breach of contract otherwise.

Despite no legal requirement for these situations, most employers allow employees time off for these appointments as a gesture of goodwill. Sometimes, employers will allow attendance during work hours on the provision this time off work is made up for elsewhere by the employee. Alternatively, employers can insist the appointment is moved to outside working hours or, if the appointment needs to be during working hours, the employee takes this time off as annual leave.

It is also important to note that a medical appointment, including emergency treatment, can sometimes be classed as a sickness absence. Moreover, antenatal and adoption appointments are given their own set of rules, with a statutory right for the time off work to attend such appointments and accompany those attending.

Employer contact

An employer should ensure to keep their contact with any employee who is off work sick to reasonable level. This means that there is no specifi c frequency of contact the employer should maintain and the level of contact will often vary depending on how long the employee has been off sick and the reason for their absence.

For example, when an employee is fi rst off sick, depending on their reason for absence, contact once a day is likely to be deemed reasonable. This allows employers to check in on the employee and get an update on how they are.

For more prolonged periods of absence resulting from a serious illness, continuing contact once a day is less likely to be seen as reasonable because there is unlikely to be a change in the employee’s condition in the timeframe. In these instances, once a week or less would be considered to be more reasonable.

In addition to the frequency of contact, the purpose of contact should also be considered reasonable. Employers have duty of care and should have some contact with an employee on sickness absence to ensure their ongoing welfare. Checking in on an employee in this way would be considered reasonable; repeatedly asking them nonurgent, work-related questions would be considered less so.

It’s also important to bear in mind the reason for the employee’s sickness. Repeatedly contacting a person who is off sick with work-related stress or anxiety, for example, may only exacerbate their condition. For such cases, it’s best to limit contact while still being mindful of the duty of care to the employee’s well-being.

As for working when on sick leave, it needs to be reasonable. For example, it would probably be considered reasonable to ask an employee who’s off sick with tonsilitis a quick question to ensure their work can be covered in their absence. However, excessive or repeated requests likely to have an impact on the employee’s recovery should be avoided, as these would be seen as unreasonable.

Discipline and sickness

If an employee is deemed unfi t to work, this does not consequently make them unfi t to participate in an internal HR procedure. If an employee is ill, an employer should act reasonably and see whether they could postpone the process until their return or, where this is not possible, explore alternatives other than attending a meeting in person such as through written submissions.

Ultimately, an employer cannot delay a disciplinary procedure indefi nitely therefore, the process can continue while an employee is absent from work due to illness. However, such conduct by an employer would be deemed more reasonable following the exhaustion of other, more accommodating options.

And if you work more than one job, it is possible to be deemed unfi t for work in one role and not the other. In this instance, it would be best to explain to your employer why you can carry out alternative work or if you have a fi t note, request it explains this.

Holiday and sickness

Employers cannot force employees to take a holiday when someone is sick. But if you have started a period of annual leave and fall ill, you can amend your holiday to sickness absence for the period you are sick. Therefore, if you are on holiday when you become ill, you can effectively switch from annual leave to sickness absence and reclaim your holiday.

But to do this, you must ensure you comply with the reporting requirements for a period of sickness absence so that your employer can action this change of circumstance on their records. Otherwise, even if you are unwell on a period of annual leave, this could reasonably remain recorded as taking part of your holiday entitlement. You will continue to accrue holiday while on sickness absence.

Sickness happens, that’s a fact. However, while employees have rights, so they have duties to their employer. Ignoring these duties will not serve an employee’s or employer’s best interests.