Sickness at work – a guide to your employment law rights

If you can’t attend work due to sickness, you have certain rights. A brief guide to these rights is laid out below

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What rights do you have if you’re sick at work?

If you are sick at work then you may have certain rights, including (but not limited to):

  • The right to time off work
  • The right to receive sick pay
  • The right to accrue holiday
  • The right to have certain adjustments made to the workplace

These are explained below.

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Your right to time off work if you’re sick

If you’re an employee and you can’t attend work due to ill health then you have the right to take time off work. For the first six days of sickness absence you don’t need to submit proof of your illness but if you take seven days or more off work sick then you should obtain a doctor’s ‘fit note’ and provide a copy of this to your employer (you should keep the original).

If you’ve been absent from work for up to six days then your employer may ask you to fill in a form to confirm you’ve been off work sick for up to 7 days.

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Your right to sick pay if you’re off work sick

If you’re off work because you’re ill then you may be entitled to receive one of two payments:

  1. Statutory sick pay
  2. Contractual sick pay (either full pay or reduced, depending on the contract terms

Statutory sick pay

The Statutory Sick Pay (“SSP”) scheme entitles qualifying employees who are absent from work due to ill health to receive a minimum weekly payment.

Employees are eligible for SSP if they:

  • Are working under a contract of employment;
  • Are incapable by reason of ill health from doing work which they would normally reasonably be expected to perform in the course of their employment;
  • Have average weekly warning of not less than the Lower Earnings Limit over the last eight weeks (the Lower Earnings Limit is £5,824 per annum as of September 2017 but you should check the Government’s rates and thresholds guidance in order to determine the specific rate at the required time)

SSP is subject to tax and National Insurance – you should check the HMRC guidance in order to find out more about this.

Some early cases supported the idea that an employee paid an annual salary (rather than being paid by the hour) should continue to receive their salary during any “involuntary” period of absence (Cuckson v Stones (1858) 1 El &El 248). However, the modern approach is that, in the absence of an express contractual provision stating that an employee is entitled to sick pay, the courts will only imply a right to sick pay if the circumstances justify it.

Contractual sick pay

Section 1 of the Employment Rights Act 1996 requires employers to provide employees with particulars of “any terms and conditions relating to incapacity for work due to sickness or injury, including any provision for sick pay”.

This information can be contained in:

  1. The contract of employment (or written statement of particulars); or
  2. Some other document which is reasonably accessible to the employee (e.g. a sickness policy, staff handbook or collective agreement (section 2(2) Employment Rights Act 1996)

If you’re off work sick then you should check your contract and work policies to see whether you’re entitled to receive sick pay on a full or reduced basis.

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Your right to accrue holiday while you’re off work sick

If you fall sick during any period of statutory holiday from work then you should have the right to cancel that holiday, take that holiday at a later date, and take time off work as sick leave instead.

If you fall sick before any period of pre-arranged statutory holiday then you should have the right to re-schedule that holiday for a later date.

Your employer should not be able to force you to take any period of statutory holiday during a period of sickness absence.

Carrying holiday over to the next year if you’re on long-term sick leave

Employers have two options for employees on long-term sickness absence with regards to holidays:

  1. To allow the worker to take paid holiday during sick leave; or
  2. To allow the worker to take the holiday on their return to work (in the next annual leave year if necessary)

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Returning to work after a period of long-term sick leave

If you’ve been off work sick for more than 4 weeks then you may be considered to be off work on long-term sickness absence. As detailed above, you’re still entitled to take or accrue annual leave during a period of long-term sickness absence.

If you’re off work on long-term sick leave then you can ask your employer or GP to refer you to a scheme called Fit for Work which can provide you with health advice, advice on returning to work, and a ‘fitness for work assessment’.

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Contact with your employer while you’re on sick leave

Being on sick leave does not release you as an employee from all obligations towards your employer. You are still obliged to obey your employer’s lawful and reasonable orders while you’re off work on sickness absence, except to the extent that your ill health makes compliance impossible. If you’re physically or mentally incapable of engaging in contact with your employer whilst you’re off work sick then you should notify your employer of this fact (and, preferably, obtain a fit note or doctor’s note confirming this).

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Can my employer continue disciplinary proceedings if I’m off work sick?

Your employer can continue disciplinary proceedings if you are off work sick, and will not be expected to postpone this indefinitely. However, your employer should take as much care as reasonably possible in the circumstances in order to avoid treating you unfairly during the disciplinary process – for example, if you cannot attend a scheduled hearing then your employer will generally be expected to postpone the hearing to a time which is mutually convenient to you and your employer. However, if you fail to attend multiple hearings then your employer may in certain circumstances proceed with a disciplinary hearing in your absence.

Consultation with the employee is central to the fairness of any dismissal for ill-health, as established in East Lindsey District Council v Daubney . In that case, the fact that the employee had not been consulted rendered the dismissal unfair

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Can my employer dismiss me if I’m off work sick?

The short answer to this question is ‘yes’, but whether a dismissal would be fair or not would depend upon the circumstances in which you are dismissed.

If you think that your dismissal from work due to ill health has been unfair and/or discriminatory then you can potentially bring your case to an Employment Tribunal.

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