Sickness absence

Contributor -

Philip Landau, founder member, Landau Law Solicitors

A employee is suffering with a headache

NOTE: Due to the ongoing coronavirus outbreak, the government has made several announcements relating to statutory sick pay. Those affected by COVID-19 and those who are self-isolating will receive statutory sick pay from day one. Employers with fewer than 250 employees will be refunded their eligible SSP costs (limited to 14 days per employee). Those not normally entitled to SSP (such as the self-employed) will receive Employment and Support Allowance.

Read the Acas coronavirus guidance and find further information and guidance for employers and businesses on the GOV.UK website.

All employees have the right to take time off work if they are feeling unwell. Good employers will actively encourage members of staff to stay at home if they are ill, to aid their recovery and prevent other colleagues becoming sick. But sometimes issues can arise as a result of long term or repeated illness - so what are your rights as an employee?

Do I need a doctor's note if I want to take sickness absence?

If you are off work for up to a maximum of seven days in a row (including weekends or non-working days), you do not need a note from your doctor. When you return to work, your employer may ask you to fill in a form to confirm you have been off sick. This process is known as 'self-certification'.

What happens if I'm off sick for more than a few days?

If you are off from work due to illness for more than seven days in a row, you will need to obtain a note from a doctor. This note is officially called a 'fit note' but it's commonly known as a 'sick note'. You can ask your GP or a hospital doctor for a fit note. It should generally be provided free of charge on the NHS but a fee may be charged if you haven't reached the seventh day of your sickness absence.

If the doctor thinks are you fit for work, they will not give you a note. Otherwise, they will provide either:

  • A fit note which confirms that you are 'not fit for work'. You should give a copy to your employer and keep the original.
  • A fit note which states that you 'may be fit for work'. In this case, your doctor should explain how your health affects what you can do at work. You should discuss this with your employer to see if any changes can be made to help you return to work (eg in a part-time capacity or with different duties).

If you are off work due to illness for more than four weeks, this is considered long-term sickness. Although your employer is allowed to dismiss you if you are sick long-term, they must first consult with you about the possibility of returning to work, otherwise you may have a claim for unfair dismissal. They must also make reasonable adjustments to accommodate your illness (eg allowing you to work flexibly) if it is due to a disability.

Does being off sick affect my holiday entitlement?

No. You still accrue statutory holiday during your sickness absence. You can ask to take paid holiday for the time you are off sick (eg to ensure you don't lose pay). But your employer cannot demand that you take annual leave instead of sick leave.

Am I entitled to pay if I'm off sick?

Many employers will allow you to take a few days off sick every year without docking your pay. Check your employment contract for a sick pay scheme or occupational scheme.

Unless your contract says otherwise, your employer does not have to pay you your normal pay for days off sick. But you are normally eligible for Statutory Sick Pay (SSP) as an employee if:

  • you earn at least £120 (before tax) per week (2021/22 tax year);
  • you have been off sick for at least four days in a row (including weekends or non-working days);
  • you inform your employer of your sickness within seven days (or before any deadline stated in your employment contract).

SSP is worth £96.35 a week (2021/22) and can be paid for up to 28 weeks. It is generally not paid for the first three days you're off. SSP should be paid by your employer in the normal way (ie as you would be paid your wages).

Can I face disciplinary action for being off sick?

Your employer may want to take disciplinary action against you if they think you are using illness as an excuse for unauthorised absence.

If your employer acts unreasonably or fails to follow its own disciplinary process, you may be able to make a claim against them. You may also be able to make a claim if your employer bullies or harasses you because of your illness.

If you suffer from repeated or long-term illness, this may be grounds for your employer to dismiss you. Again, they must follow a reasonable procedure. Typically, this will include discussing the problem with you and asking for permission to get a medical report.

In some cases, a long-term illness (including conditions such as depression) may constitute a disability. If so, your employer must take reasonable steps to try to accommodate your disability otherwise you may have a claim for discrimination.

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