Sickness

You have rights and responsibilities sickness means you are too ill to work.

What are my rights to sick pay?

In most cases, your employment contract will set out what type of sick pay you are entitled to. There is no absolute entitlement to ‘company sick pay’ – an enhanced sick pay – as this will generally be at 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.

Statutory Sick Pay is limited to £89.35 per week and is paid for a maximum of 28 weeks over a rolling 3 year period.

Do I qualify for SSP?

You must:

• Have 4 or more consecutive working days of sickness where you are incapable of carrying out work. The first 3 ‘waiting days’ are unpaid
• Notify your employer you are unable to work within their set deadlines – or within 7 days if they do not have any
• Give your employer evidence of your incapacity, such as self-certificate or doctor’s certificate, known as a ‘fit note’
• Have been earning an average of at least £113.00 (before tax) per week
• Not have receives SSP for 28 or more weeks in the last 3 years.

If you are off work again within 8 weeks of the first absence, then you do not need wait another 3 days before SSP becomes payable on the 4th day. These are known as ‘linked waiting days’.

Do I need a fit note from my GP, or can I self-certify my sickness?

If you are ill for less than 7 consecutive days, then your employer can ask you to ‘self-certify’ that you have been off sick. Employers will usually provide their own form for you to complete.

You must provide your employer with a doctor’s fit note (previously called a sick note) if you are off for more than 7 days in a row (including days you would not normally work). The fit note will say whether you are ‘not fit for work’ or ‘may be fit for work’. Your GP may suggest what changes need to take place to help you return to work. Your employer should discuss these with you. If you cannot agree to the changes, then you must be treated as ‘not fit for work’.

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

Your employer is not legally required to give you time off work to visit the doctor or dentist (whether paid or unpaid) unless your contract of employment says so, or in cases where your absence is because  you suffer from a disability or the time off is for antenatal appointments.

Your employer can insist you make appointments 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.

Medical or dental emergencies which require urgent treatment will likely amount to a sickness absence. In these situations, either statutory or contractual sick pay will be due to you.

If you are pregnant, you have a legal right to reasonable time off work with pay to attend antenatal appointments if arranged by 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 per pregnancy.

Can my employer contact me whilst I am signed off sick?

Yes. It is generally seen as reasonable and appropriate for an employer to do so as part of managing staff. It is often beneficial to avoid feelings of being isolated or ignored.

Your employer needs to be sensitive in situations where your illness could be aggravated by them making contact (such as stress, depression and anxiety – especially where they are work related). If it is not necessary to contact you, and where their efforts cause you more distress, your employer could be acting unreasonably and there may be grounds for you resigning and claiming constructive dismissal.

Can I still be disciplined while I am off sick?

If you are subject to disciplinary proceedings, your employer would not be expected to put off a disciplinary hearing indefinitely simply because you are unwell. They should only proceed to a hearing if they have exhausted other avenues such as rescheduling the meeting or inviting you to make written submissions.

My employer wants to dismiss me because I am unwell. What can I do?

You will normally need to be employed for 2 years to be protected from being unfairly dismissed. There are exceptions to this such as if your illness is related to your pregnancy or a disability

Most employers will get up-to-date information on your condition before making a decision. This usually involves consulting with your GP or other health professionals. An employer will sometimes require you to undergo a medical examination with their Occupational Health Professional or someone else medically qualified to produce a report. The aim is to make sure you are fit for the work you do.

The report would usually include a diagnosis, likely prognosis, treatment and timescale for a 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. They will then make an assessment of your fitness for work. It is important that you take early legal advice if you do not agree with their assessment. Call for free on 08000 614 631 in confidence and without any obligation.

Where your illness results in persistent but short periods of absence, you would usually be warned and told what level of attendance your employer expects you to achieve. If there is not a sufficient improvement, dismissal could be justified.

Ultimately, if you are unable to do your job and if there are no reasonable adjustments that could be made, it may be fair for your employer to dismiss you, even if you have a disability.

You have extra protection from being unfairly dismissed or discriminated against if you have a disability.

What if I am sick on holiday?

If you become sick during your holiday, you are entitled to rearrange your leave for another date later in the year. In practice, this means that your employer will be 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 the illness, otherwise you may not qualify for company sick pay.

Can I be forced to take holiday when I am sick?

No. You cannot be forced to take holiday while you are sick.

Do I continue to accrue holiday while on sick leave?

Yes.

Can employees on long term sick leave carry unused holiday over to the next holiday year?

Yes, you can carry up to a maximum of 4 weeks leave into the following holiday year. 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, you will lose the right to carry it over.

What do I do now?

This is where we come in. Employment law is all we do.

It can often feel like your employer holds all the power.  They are likely to have experienced HR professionals or a solicitor working in the background.  That’s why you need the best support and advice available.  You need a specialist employment lawyer – one who will push for the best outcome for you.

We understand how it feels. We have helped hundreds of employees and because we act for businesses too, we know the tactics you’re likely to face from your employer.  We know all the tricks in the book.

FREE first advice

Have you ever wanted to just ask an expert employment law solicitor if they can help you, without worrying about what it may cost to contact them?