Your employment rights when you’re sick

When you’re feeling ill, work is often the last thing you want to think about. We have, therefore, set out a useful guide to help you understand your rights and obligations during a period of sickness absence so when you do become unwell, you can focus on rest and recovery.

Every employer should have policies and procedures in place covering sickness absence to clarify employees’ rights and explain what they must do to report any illness, and any necessary action throughout their absence. Policies are bespoke to each employer, but there are some general points to bear in mind:

Informing your employer that you’re off sick

Employees have the right to take time off when they’re sick. When taking time off due to illness, the first step is to notify your employer that you are unwell so they can plan for your absence and arrange appropriate cover. You should do this as soon as possible, but no later than the start time of your working day. As a part of your employee rights and responsibilities, you should check your employment contract or the company’s policy on sickness absence as it may specifically confirm when you must report your absence, in which case this should be followed.

You should also review your contract of employment and the company’s policy to establish who you should report your absence to; this is often your line manager but may not be the case for all businesses.

Given that many companies use platforms like WhatsApp and Microsoft Teams for business communications, some employees may assume that they can be used to report sickness. However, it’s common that employers will require an employee to call into work to report their sickness, rather than doing so by email or written message. This is often because ringing in sick at work makes it easier for an employer to ask any questions that help them plan for their absence. Example questions include:

1. How long do you expect to be unfit for work?
2. What is the illness or injury? This can help identify whether it relates to a health and safety issue.
3. How can we best contact you whilst you’re off sick?
4. Are there any immediate matters or urgent work that needs to be picked up in your absence?

Employees must report their absence in line with the above for the first seven days of sickness absence. This is known as “self-certification”, whereby an employee deems themself unfit for work. This usually requires a brief explanation of why they will be off sick and answering any of the questions above.

If, after seven days (including non-working days), they still consider themselves too unwell to work, they will be required to provide a ‘fit note’ (sometimes referred to as a sick note), which is an official written statement confirming that they aren’t fit for work. These can now be supplied by a range of healthcare professionals like:

• Doctors
• Nurses.
• Physiotherapists.
• Occupational therapists.
• Pharmacists (in some cases).

The fit note should start from their eighth day of sickness absence, at the latest, and confirm how long their registered healthcare professional expects them to be off work. A further ft note will need to be obtained if they still deem themselves as unwell to return to work on the expiry of the original fit note.

If a fit note isn’t provided, employers can withhold sick pay on the basis that they’re not satisfied the employee is unwell and unable to attend work. Employers may also have grounds to treat an employee’s absence as unauthorised, without contrary information, instigating its disciplinary procedure.

How does sick pay work?

​The minimum pay an employee is entitled to during sickness absence is statutory sick pay (“SSP”) – provided they are eligible.

The system in place for eligibility and payment of statutory sick pay can appear complex. In summary, it entitles 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. Currently (as of April 2024), the weekly SSP rate is £116.75 however, this is reviewed and often increased every April.

In most circumstances (other than where there are periods of linked sickness absences), SSP is not payable in the first three days of your sickness absence including weekends and bank holidays and these are often referred to as the “waiting days”.

To qualify for SSP, you must:

1. Be classed as an employee and have done some work for your employer
2. Earn an average of £123 per week (before deductions)
3. Have been ill for more than 3 days in a row.

SSP is the minimum your employer must pay to you, and employees may be entitled to higher payments during periods of sickness absence. In line with section 1 Employment Rights Act 1996, it should be confirmed in your contract of employment what your sick pay entitlement is – i.e. whether you will be paid SSP, or an enhanced payment over and above SSP generally known as “company sick pay”. If employees are entitled to company sick pay, this will usually be stated as paid inclusive of SSP, not in addition.

What are your long-term sickness employment rights in the UK?

Long-term sickness is usually classed as having four weeks or longer off sick. The following employment rights apply for both long and short term sick leave:

• The right to statutory sick pay (SSP) – Employees are entitled to a total of 28 weeks of SSP, provided they meet certain criteria.
• The right to holiday – Up to four weeks of holiday can be carried over if it was unused due to sickness (unless the employer allows additional holiday to be carried over). Any holiday carried over must be used within 18 months from carry-over.
• Reasonable adjustments – Employers have a duty of care for their staff and should consider making any reasonable adjustments that may be required while they’re off sick and upon their return.