Rights When off Work Sick – UK Employment Law

Being off work sick can be a stressful time. You might be uncertain as to your employment rights, and sick pay entitlement. Our guide will help you understand what you need to do when taking time off due to illness, and outline your rights under UK Law.

Your Rights to Sick Pay

It’s likely that your employer will have a sick day policy with guidelines about what you need to do if you are unwell.

The policy should contain information on how much sick pay you’re entitled to during illness, and how you should communicate with your employer if you are ill.

It’s important to read the policy and follow the procedures laid out in it. If you don’t, you may be subject to disciplinary action.

The right to fully paid sick days is entirely at the discretion of your employer, there is no legal right under UK employment law. Read your Contract of Employment carefully to understand what your employer is offering.

Your workplace might also have policies in place to cover situations where you need time off to go to a hospital appointment, or attend day surgery. Be aware that sick leave rules do not apply to situations where you have notice of needing time off.

Second Jobs

There are some scenarios where you can be signed off one job, and continue to work in another.

This is generally OK to do if your contract does not forbid it, and the reason for being off would not prevent you doing your other role.

That means there are some situations where you have the right to claim sick pay in one role, whilst also working another job.

Paid Sick Days

If your employment contract offers you paid sick days often known as occupational sick pay (OSP), then you will be paid as usual for a set number of absences.

Where your employer does not offer OSP, there may still be payment available. If you qualify, you should be entitled to Statutory Sick Pay (SSP).

You may also wish to read our guide on if your employer can make you take holiday instead of sick leave.

Your Right to Statutory Sick Pay (SSP)

If you are still off work sick after 4 days and unable to return to work, you are likely to be eligible for Statutory Sick Pay (SSP) of £96.35 per week.

This is the minimum amount employers must pay you by law.

To qualify for statutory sick pay, you must:-

• Earn at least £123 per week.
• Notify your employer within the period specified in their sick policy. If a period isn’t specified, you must do so within 7 days.
• Submit a self certified fit note, or a doctors certificate.
• Be sick for 4 or more consecutive days, including weekends and holidays.

Sick pay is payable from the 4th working day you are off sick. That means the first 3 sick days you are unpaid, with a statutory rate of £96.35 per week kicking in after that. The first 3 days are referred to as sick pay waiting days.

Find out more about SSP in our guide to what happens when sick pay runs out.

Absences within 8 Weeks

If you need to take further sick leave within 8 weeks of your first absence, there will be no waiting period for SSP. You will be paid from your first day off work. This is called a “SSP Linked Period“.

SSP is payable by your employer for up to 28 weeks.

If you are working on a zero hours contract, then you are still entitled to SSP. Our guide on zero hour contract sick pay will help you work out if you are entitled to payments when off work sick.

How to Claim SSP

Once you meet all the requirements of SSP, your employer will send you the correct documents for you to make a claim.

For an absence of a week or less, a self-certification completed by you is all that is usually required to confirm your illness. After a week, you need to provide a doctor’s note.

How Much Statutory Sick Pay You Will Receive

• Employees who qualify can get up to £99.35 a week in tax year 2022-23. If you get contractual sick pay, you may receive more than this but you cannot receive less.
• You can receive SSP for up to 28 weeks for a total of 3 years. However, you must return to work for at least 8 weeks before commencing another 28 week period.
• You receive SSP in the same way as you would receive your regular pay
• If your employment ends whilst you are in receipt of SSP, your payments will stop.
• SSP is not affected if you have to go into hospital.
• Working abroad? You may be able to get SSP if your employer is liable to pay National Insurance contributions for you.
• If you go abroad to visit, SSP can still be paid provided you can prove you are still sick
• If SSP is your only income whilst you are off sick, you may be entitled to receive other benefits in addition.

See Also: SSP Rates – our guide on how to work out daily vs weekly rates of sick pay will help those who don’t work 5 days per week understand their entitlements.

How To Call in Sick to Work

If you don’t have a comprehensive sick day policy document, or information in your contract about how you should call in sick – these are some general guidelines.

Following these steps will help you communicate your illness to your employer effectively, and understand your rights to sick pay.

Call The First Day you Can’t go to Work

It is important to contact your employer (or have someone contact them on your behalf) on the very first day you cannot attend work due to sickness to tell them that you won’t be coming to work.

You should know who to notify beforehand and where to send in medical certificates. You should also be aware of any rules concerning self-certification and what’s likely to happen if you fail to comply.

What to Say When You Call in Sick

Your work will likely have specified how they’d like you to communicate in the event of an illness. It’s a good idea to stick to their procedures where possible.

You don’t need to go into a lot of detail. Just keep it brief and let your manager know you are sick and won’t be able to make it.

It’s good practise to give an indication of how long you feel you may be off. This will let your team plan how to cover your workload effectively. Good communication is key to maintaining a good working relationship.

See Also: What to say when calling in sick and how to stay professional.

Do You Have to Call in Sick Every Day?

How often you need to call in sick will depend on your employers sickness policy. If they require you to touch base every day, then it’s advisable to follow their requirements.

Hopefully if you have a longer term illness or a sick note covering a set period you will be able to agree to touch base with your manager less frequently.

If your employer asks you to call every day, and it is part of their sickness policy, it’s advisable to do so. If you don’t follow their guidelines you may leave yourself open to disciplinary action.

When You Will Need To Provide a Sick Note

You can self certify short absences. Your employer will usually provide any paperwork needed to do this. However if you are off work for more than 7 consecutive days you will need to see a doctor.

The sick note (or fit note as it is now called) will indicate whether you are “unfit to work” or “may be fit for work” if some reasonable accommodations at work would allow you to return.

A fit note indicating you “may be fit to work” suggests you may need some adjustments to allow you to go back to work. If this is the case, your doctor may suggest what would help you return to your job. In this scenario your employer should discuss what adjustments you need with you.

If you can’t agree on suitable changes, you should be treated as “not fit for work” and your entitlement to sick pay will continue.

See also:

• How long does a self certificate last? A Guide to taking time off work without a sick note.
• How to self certify sickness.
• Long term sickness employment rights in the UK.

Frequency of Contact From Your Employer During Sick Leave

There are no UK employment law regulations that directly deal with how often your employer should be in touch with you when you’re off sick.

Check your workplace sick policy to see any guidelines about how HR or your manager should be contacting you when you’re off work.

It is not unusual for contact to be made for a general welfare check during a longer absence. They may also touch base and ask if you know when you are returning to work so they can make arrangements to cover your absence.

Reasonable Contact

If your employer contacts you too often it can feel intrusive, and you may even feel their conduct constitutes harassment while you’re on sick leave. The amount of contact you have with them must be reasonable.

The level of contact which is reasonable will depend on the reason for your absence from work. If you are off with illness related to stress or depression, too much contact can make mental health issues worse.

In this type of situation, an employer can be deemed to be acting unreasonably. Particularly if your condition is work related and their behaviour leads to you resigning from your position. It may give grounds for constructive dismissal claim at an employment tribunal.

Our other, in depth guide looks at the question of can my employer contact me when off work with stress?

Disciplinary Hearings & Sickness Absence

Many people worry about the prospect of disciplinary action or dismissal from a job as a result of their sickness.

Whilst there are protections in UK employment law against disability discrimination. However, you can still get a written warning or disciplinary if your employer is concerned about sickness absence.

Disciplinary Hearings for Sickness Absence

A fit note from your GP should always be accepted as proof of a genuine illness. However, even if you have been off sick with a doctors note, your employer can still instigate a disciplinary hearing or issue a writen warning.

High levels of sickness absence are valid grounds to issue a formal warning. Continued problems with absences can lead to you being fairly dismissed.

Employment tribunals accept that a business needs its staff to attend work regularly in order to function properly.

Dismissal Due to Sickness

If you have been employed for less than two years, you cannot make an unfair dismissal claim against your employer.

This means that if your employer feels you’ve had too much time off sick in your first two years of service, they can dismiss you. They should still follow proper disciplinary procedures if they do wish to terminate your employment.

However, if your illness is because of a protected characteristic such as disability, you have extra protections at work.

Protected Characteristics

The exception to this is if you are sacked because you have a disability. This can include illnesses such as cancer.

You must have disclosed your illness to your employer before dismissal in order to make a claim at an employment tribunal.

When you have less than two years service your employer will be able to sack you for any reasons unrelated to protected characteristics without fear of a tribunal claim.

Correct Procedures for Dismissal on Capability Grounds

If you have been ill for a long time, or will not be able to return to work, your employer may be able to dismiss you.

This is usually referred to as “Dismissal on Capability Grounds” and is one of the 5 fair reasons for dismissal.

However, careful procedures must be followed and assessments made to understand your medical status.

Failure to follow proper procedure could leave them open to legal action. These procedures would usually include some or all of the following:-

• Getting information from your doctor or hospital consultant about your fitness to work.
• Referring you to occupational health or medical staff hired by them to make an assessment on your health status.

See Also: Can you be sacked for being off sick with depression or stress? A comprehensive guide to being dismissed on grounds of ill health. Although this guide has a slant towards mental health conditions, it’s main points are relevant for all illnesses.

What’s in an Occupational Health Report?

An occupational health report would look at your health condition and your likelihood of recovery, alongside details of your treatment.

It would also include a timeframe for you returning to work, and would also lay out any reasonable adjustments you might require in the workplace.

If you are asked to undertake an examination by your employers own health consultants and refuse, you may be deemed as having acted unreasonably. This would impact your ability to make a claim if you were subsequently dismissed. An occupational health report can also help facilitate your return to work.

If you are dismissed whilst in receipt of SSP, your employer must give you form SSP1 which explains why they are no longer paying you SSP.

You should complete the form and take it to your local job centre plus. If you believe you have been dismissed because you are ill or in receipt of SSP, you may be able to complain to an Employment Tribunal. You should seek advice from an experienced employment advisor at your local benefit office.

Handing in Your Notice While Off Sick

If you have a period of sickness during your notice period, or decide to hand in your notice whilst off sick you may still be entitled to some notice pay.

The amount of pay you are entitled to will vary depending on your contract, and the circumstances of your absence.

If you don’t know what notice pay you’d be entitled to if you resign while off work ill, first of all check your contract.

See Also: what happens if you call in sick during your notice period? This may be of help if you fall ill after resigning.

How Much Notice Pay When Off Sick?

If you hand in your notice whilst off sick, you will still be entitled to some statutory notice pay at your full wage.

Statutory minimum notice pay is 1 week. If your notice period is longer than 1 week then your employer should pay you SSP for the remaining weeks of your employment. If you have exhausted your sick pay entitlement you may still be entitled to some paid notice.

The same rules apply if you are dismissed on grounds of ill health.

Further Reading

• Wondering what happens if you are sick on annual leave? Our guide to your rights to claim sick leave instead of holiday.
• If you’ve been off sick for a while you might wonder can I go on holiday when off work sick? Our guide looks at your right to a break during sick leave.
• Our more detailed guide on what you can do when off work sick gives information on a broad range of activities.