Long Term Sickness – Employment Rights During Sick Leave

Falling ill and ending up on sick leave is full of stress and uncertainty. During long term sick leave, it’s important to understand your employment rights as well as your own obligations. UK employment law offers protection to workers during their absence, and as they navigate a return to work.

Our guide helps employees understand their rights and processes that will be followed during long term sick leave. As well as legal rights, we’ll also explore the process of returning to work after long term sickness.

What is a Long Term Sickness Absence?

An employee is considered to be on long term sickness when they are absent for 4 weeks or more.

When a worker has been off for an extended period, usually accepted as anything over 4 weeks, they are classed as long term sick. When a member of staff is off for less than 4 weeks, this is generally considered to be short term.

The advice on the UK Gov website is that anything over 4 weeks “may be considered long term sick”. This does mean there’s room for differing interpretations, so it is always advisable to check with company policy.

Long Term Sick Leave Employee Rights

There are strong rights and protections under UK employment law for employees on long term sick leave.

Employees have a number of statutory entitlements during sickness absence. Employers must make sure all rights and responsibilities to employees are upheld.

See Also: Can my employer contact me while on sick leave? A guide on reasonable levels and methods of employer contact.

Statutory Sick Pay

When an employee is off sick, they may be entitled to statutory sick pay.

This is a statutory benefit paid out to any worker who is off sick and meets the criteria for SSP. Employees are eligible for a maximum of 28 weeks. Again though, it is important to check employee contracts as some companies have their own rates of sick pay. When there is nothing in place, SSP is used.

The rate of SSP for the current period (2022 to 2023) is £99.35 per week and will increase to £109.70 in April 2023.

This is payable after an employee has been off sick for three consecutive working days. Sick pay entitlement is payable from day 4 of absence. The first 3 days are referred to as “waiting days“.

You can self certify for the first 7 days of any illness.

See Also: How to self certify sickness.

Qualifying for Sick Pay

If you aren’t sure if you qualify for sick pay or not, it’s very simple to determine eligibility.

To be eligible for SSP you:-

  • Cannot be self employed.
  • Need to be classed as an employee.
  • Need to have been off sick for 4 days in a row (these can include non working days).
  • Must be earning at least £123 per week, before tax.

SSP is paid directly into your account as your normal wages are. SSP is a legal requirement if your employer has no other sick pay scheme in place.

They may offer occupational sick pay at an enhanced rate, but this can never be less than the Statutory Sick Pay rate. This is a statutory right, which means it cannot be varied by a contract of employment.

What Happens When Sick Pay Runs Out?

Sometimes, employees may be off for longer than 28 weeks meaning their sick pay is exhausted. What happens when SSP runs out?

Fortunately, there are some other options to be considered. Firstly, you should be aware that once you are back at work and have been continuously for 8 weeks, the 28 weeks of SSP is reset. This means should you require SSP again, your entitlement will reset.

It might also be worth asking to take your accrued annual leave during your period of absence. Often this makes more financial sense and you are still entitled to holiday pay. In the event your employer agrees, your SSP will be put on hold until you have used your holidays up. You cannot be paid both SSP and holiday pay simultaneously.

There are also other benefits you may be entitled to. Your employer will give you an SSP1 form near the end of your SSP. This will help you in your claim for further financial help such as Employment Support Allowance or Universal Credit.

Disability Discrimination

If you are a person with a qualifying disability, you have rights under the Disability Discrimination Act 2010.

This law states that:-

You’re disabled under the Equality Act 2010 if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.”

Essentially, this law ensures that those workers disabilities have protection from discriminatory behaviour by their place of work.

To be considered a substantial disability, it needs to adversely affect the way you carry out simple everyday tasks. To be considered as a long term disability, you need to have had the condition for 12 months or more.

This act helps the workplace keep an inclusive environment where disabilities are concerned. Someone may have to go on SSP with their disability fairly often, especially if it is progressive or chronic.

The Discrimination Act ensures you are treated fairly and not dismissed without correct procedures being followed.

Disability & Reasonable Adjustments for Absence

Employers must tread carefully when it comes to dealing with absences related to the health conditions of disabled employees.

The requirement under the Disability Discrimination regarding reasonable adjustments in the workplace extends to ensuring that disability related absences do not disadvantage disabled employees.

Adjustments should be tailored to individual employees, but reasonable adjustments could include:-

  • Not counting some sick days towards trigger points for disciplinary action.
  • Increasing the number of sickness absences that would trigger a disciplinary process.

An employer must take steps to assess what adjustments to absence policy may be appropriate for individual employees.

The onus is on the employer to ensure disabled employees are not disadvantaged by their absence policies because of their disability. Failing to do so could leave them open to a disability discrimination, claim at an employment tribunal.

Can You Be Sacked For Being Off Sick?

It would be wrong to assume you cannot be sacked as a result of being off sick. However, if this is the route an employer decides to take, they must make thorough assessments of your capability to continue working.

A failure to carry out effective procedures for dismissal could result in an employee claiming for unfair dismissal. One of the measures that must be taken is something called a capability assessment.

Capability assessments help the employer build up the bigger picture in terms of how the employee will cope in the job role. It helps management to ascertain if any reasonable adjustments need to be made to facilitate a return to work.

If it becomes clear that the employee cannot return to their previous job role, then it might be that they could be considered for a different or adjusted role within the business.

If this isn’t possible, then an employer can give a warning of the intent to dismiss the worker. There will usually be a first and then a final warning of this intent once all avenues have been exhausted.

Return to Work After Sickness – UK Law

Returning to work after long term sickness can be a daunting process. However, employers should be taking steps to help make restarting work a success.

Workplaces should have a policies and procedures in place to help deal with such transitions. There are usually processes to follow when someone is returning to work after a period of absence.

Here’s some of the things that can happen as you begin the process of returning to work:-

Invite to Attend a Welfare Meeting.

You might be asked to attend a welfare or wellbeing meeting, either during your absence or once your return to work date has been set.

This can help with any worries or queries the employee or employer may have about returning to work.

If the absence was a result of a disability then the meeting might include a capability assessment. The person conducting the meeting may ask about your condition, how it affects you and what the long term outlook is. It is also used as an opportunity to discuss any changes in the workplace.

Request for Medical Input

Your employer may ask for some input from your doctor about your needs as you return to work.

This helps them understand more from the medical aspect and evaluate what adjustments may need to be considered before your return.

A referral to occupational health may also be considered.

Phased Return to Work

It might be in everyone’s interest to look at the possibility of a phased return to work.

This can help in the event of long term sickness so that you can integrate back into the workplace slowly and build resilience gradually.

You will probably be a little anxious about returning and fitting back in so a phased return can be helpful. This usually means doing fewer hours in the build up to a full return to work.

It is also a useful way of ensuring the requirements of role are still a good fit for your capabilities.

Reasonable Adjustments

When an employee is due to return after a long absence, they have a right to ask for reasonable adjustments to be made.

An employer should be more than willing to work with the employee to ensure such adjustments are met. Of course, there may be some requests that cannot be implemented but as far as possible, employers should make any changes necessary.

Some adjustments that might be requested by an employee include:-

  • A change in working days.
  • A change in working hours.
  • Some changes to the environment.
  • A rethink of some of the duties.
  • Assigning an accessible car park space to the employee.
  • Providing additional equipment.

Right to Request Flexible Working

Someone on long term sickness may wish to request flexible working or work from home upon their return.

Flexible working covers many different types of working arrangements. It is designed to be of benefit to both employees and employers.

Flexible working can include asking to reduce working hours, working split shifts, remote work, or changing the start and finish times of your working day. To request a change like this, there will be a procedure to follow. You should make this formal request to your boss.

Further Reading: Reasonable Adjustments – ACAS.

Time Off For Medical Appointments

After a spell of a long illness, it is often necessary to attend regular medical appointments.

This will be the case if the employee has a disability or other long term or chronic illness. It is always imperative to check the contract of employment or absence policy as this will often detail procedures for this type of time off work.

If you have a disability, and your employer does not give you time off for medical appointments, it may be discriminatory. Allowing time to attend the doctor or hospital may also be considered a reasonable adjustment within the workplace.

How you are paid for these appointments will be again down to what your contract says. There is nothing in place to say your employer must pay for these. It may be unpaid, you might be asked to make the time up or you can use it as a holiday in some cases.

Annual Leave Rights

One of the statutory entitlements to be aware of while on sick leave is that an employee still accrues annual leave.

This is important to know as it can help when sick pay is coming to an end. You can then take all your accrued holiday until you have sought additional financial help if needed.

The only thing to bear in mind is that you cannot be paid sick pay and holiday pay at the same time. Sick pay can be frozen during a holiday period and then reinstated once it has been used up.

Resigning While on Sick Leave

If you come to the decision that you will have to leave your employment due to ill health, there are rights you need to be aware of during the process.

It’s perfectly acceptable to resign on sick leave. If you’re unsure how to go about this, you would normally follow the same procedures, and give a notice period as per your contract of employment.

You will continue to accrue holiday pay during your notice period, and you should make sure you are aware of any outstanding holiday entitlements. In most cases, you’ll also be entitled to some notice pay at your full pay rate.

Our guide on resigning while on sick leave will take you through the process and your rights, step by step. Make sure you get all your statutory entitlements.

See Also: Rights When Off Work Sick – our more general guide on rights when off work sick.

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