Your employment rights when you're sick
It's a simple fact of life that we all feel under the weather or sick from time to time. Thankfully, most of the time, it is nothing serious, and we soon recover.
However, when you're feeling ill, regardless of the reason, work is the last thing you want to think about. It would help if you took the time before you face an illness to understand your rights and your obligations during a sickness absence from work so you can focus on rest and recovery at such a time rather than worrying about what you need to do.
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 your employer you're off sick
The first step is to notify your employer that you're unwell so they know you will not be working and can plan for your absence and arrange appropriate cover. You should try and do this as soon as possible, but no later than the start time of your working day. Often, your employment contract or the company's policy on sickness absence will confirm a time by which you must report your absence. If this is the case, be sure to comply with these timescales.
You must report your absence in line with the above for the first seven days of your sickness absence. This is known as "self-certification", whereby you effectively deem yourself unfit for work and inform your employer of the same, usually with a brief explanation of why you consider this to be the case and an estimation of when you expect to be able to return to work.
If, after seven days (including non-working days), you still consider yourself too unwell to work, you will be required to provide a fit note from your doctor or another registered healthcare professional. A fit note is an official written statement confirming that you are not fit for work. This fit note should start from your eighth day of sickness absence, at the latest, and will confirm how long your doctor or registered healthcare professional expects you to be off work.
If you are not fit to return to work at the expiry of a fit note, you will need to speak to your doctor or registered healthcare professional to get a further fit note to cover your ongoing absence.
If you do not provide a fit note, your employer can withhold your sick pay on the basis that they are not satisfied 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.
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. In summary, it entitles eligible employees absent from work due to incapacity who meet three qualifying conditions to receive a weekly statutory sick pay payment. Statutory sick pay is limited to a maximum of 28 weeks. You can calculate your specific entitlement online.
The four qualifying conditions, which are set out in sections 151-154 of the Social Security Contributions and Benefits Act 1992, specify 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 first 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-certification or a fit note); and
- Earn at least £123.00 (before tax) per week.
As noted, statutory sick pay is the minimum, and employees may very well be entitled to higher payments during periods of sickness absence. Usually, it will be confirmed in an employee's contract of employment what their sick pay entitlement is, whether statutory sick pay or what is generally known as "company sick pay", as additional sick pay 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.
When do medical appointments become sickness absences?
Your employer is not legally required to give you time off for a doctor or dentist appointment (paid or unpaid) unless you need to attend such appointments in connection with a disability. That being said, if it is confirmed within your contract of employment that you will be entitled to time off work to attend a doctor and/or dentist's appointment, your employer is obliged to let you do so and pay you in accordance with this clause, or they would be in breach of contract.
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 can sometimes be classed as a sickness absence, including emergency treatment. 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.
How often is my employer allowed to contact me while I am off work?
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 specific 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 first 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 therefore they should make 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 non-urgent, 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 wellbeing.
Can my employer ask me to do any work if I am on sick leave?
What is ‘reasonable’ once again comes into consideration when asking an employee to work while off sick. 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.
Can I continue to accrue holiday while on sick leave?
Employees continue to accrue holiday whilst on sickness absence.
Can I still be disciplined while I am off sick?
If an employee is deemed unfit to work, this does not consequently make them unfit to participate in an internal HR procedure. That being said, if an employee is ill, an employer should act reasonably and see whether they could postpone the process until your return or, where this is not possible, explore alternatives with you than attending a meeting in person, such as written submissions. Ultimately, an employer cannot delay a disciplinary procedure indefinitely; therefore, the process can continue whilst 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.
Can I carry out other work, if I have two jobs, whilst I am supposed to be on sick leave?
If you work more than one job, it is possible to be deemed unfit 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 fit note, request for it to explain this for the employer's reference.
Can I be forced to take a holiday when I am sick?
No, your employer cannot force you to take a holiday because you are sick.
What if I am sick whilst on holiday?
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.
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.
If you need any assistance with sickness leave rights or sickness absence policies, please contact one of our employment lawyers for advice.