25th April 2018

Your employer should have a policy which explains what to do if you are unable to come to work due to illness.

It should include a reporting procedure for letting the right person at work know that you will not be there. They may ask you to contact them by a certain time or in a certain way.

if you fall ill, you are entitled to take time off work until you recover

If you do not inform your employer of your illness within the time limits they set (or within seven days if they don’t specify a deadline), you will no longer be legally entitled to sick pay, unless it says otherwise in your contract.

You may also be breaching your terms of employment if you do not follow their procedure, which could lead to you getting into trouble at work and even losing your job.

Sick pay

As an employee taking time off work due to illness, you may be entitled to sick pay. There are two standard forms of sick pay:

  • Statutory Sick Pay (SSP) – the minimum amount that you are legally entitled to
  • company sick pay (also known as occupational or contractual sick pay) – additional or more generous sick pay that your employer may choose to give you
Statutory sick pay

Your employer should give you Statutory Sick Pay if you are classed as an employee, have reported for duty at least once, and have average pre-tax weekly earnings not less than the Lower Earnings Limit of £113 per week. You must be off work sick for a minimum of four days before you can receive Statutory Sick Pay.

You must also let your employer know about your sickness within the time limit they set in their sickness policy (or within 7 days if they do not set a deadline), otherwise you may lose out.

you must also let your employer know about your sickness within the time limit they set in their sickness policy

The rate of Statutory Sick Pay is currently £89.35 per week for a maximum of 28 weeks in any period of sickness.

Exceptions

If you are receiving Statutory Maternity Pay, you will not be entitled to SSP. Also, if you have already been paid 28 weeks of SSP this year, your employer does not have to give you any more.

Another reason for which you may be disqualified is if you have had 3 or more years of what are known as “linked periods” of sickness.

A linked period of sickness is when you have at least 4 days off work sick within 8 weeks of another period of taking at least 4 days off work sick.

Company sick pay schemes

Companies can offer their own sick pay schemes which are more generous than the Statutory Sick Pay rates. This is known as contractual or company sick pay.

Statutory Sick Pay is the minimum amount of sick pay under the law, so your employer cannot offer company sick pay at a rate lower than SSP.

Because it is not a legal entitlement, your employer can decide the terms under which you can receive company sick pay. They may, for example, require you to have worked for the company for a certain amount of time.

your employer can decide the terms under which you can receive company sick pay

However, if you are not able to receive company sick pay, your employer must still obey the rules relating to Statutory Sick Pay if they apply.

For example, they may limit company sick pay to covering ten weeks of illness, but because SSP lasts for up to 28 weeks, they must pay you SSP for the remaining 18 weeks if you are ill for that long.

Sometimes, it may state in the contract that company sick pay can be paid at the employer's discretion. They may decide to only pay Statutory Sick Pay in some circumstances, or might choose to pay an ill employee at company sick pay rates even though they do not technically qualify.

Even if the employer is allowed to apply company sick pay on a case-by-case basis, they must still have a good reason for their actions and be consistent.

If you feel that your employer did not have a good reason for a choice relating to the payment of company sick pay – for example, if you suspect that they may have made a decision for discriminatory reasons or because of favouritism – they may be breaking the law.

Work-related sickness

Your employer may have a special scheme in place for injuries or illnesses received in the workplace; the amount of pay is not ordinarily related to the type of sickness or injury.

In the event that your employer is responsible for your incapacity, you may be eligible to bring a personal injury claim against your workplace. Both physical and psychological injuries are claimable, including stress and depression.

For further information regarding this, consult a solicitor or trade union representative.

Problems receiving your sick pay

If your employer has not paid you either type of sick pay when you think they should have, or you think that they have paid you the wrong amount, you should bring this up with them and ask them to fix the problem.

If your employer has failed to pay you the appropriate amount of sick pay, they may have committed breach of contract or unauthorised deduction of wages. If they do not rectify the issue you may be able to take them to an employment tribunal or to County Court.

failure to pay you the appropriate amount of sick pay may be a breach of contract or an unauthorised deduction of wages

Explaining your illness to your employer

If you have been absent from work because of an illness which lasted seven days or less, your employer can ask you to self-certify your illness by completing a form.

This is known as self-certification. If you have been off work sick for more than seven days, you will need to get an official Statement of Fitness to Work (‘fit note’) from a GP or the doctor that treated you.

As well as serving as evidence of your illness, a fit note allows a doctor to supply information on whether your employer needs to make any adjustments to help you when you go back to work.

The doctor may suggest ways you can return to work more efficiently; for example, they may advise that you should temporarily be permitted to work reduced hours or relieved of your more stressful duties. They may even advise that you be given more time off work to recover.

Returning to work after sickness leave

Employers are best advised to initiate a return to work chat, acting as an informal assessment, once the employee has returned to the workplace, with the goal of:

  • welcoming the employee back to the workplace;
  • assessing the fitness of the employee and the appropriateness of their return to work;
  • informing the employee of any news or progress made while they were away;
  • determining the reason and/or cause of absence;
  • talking about any support that could be provided by the employer in relation to the employee's return to work; and
  • discussing whether the sickness is work or duty related and if so addressing an alternative working solution.

Monitoring sickness

Employers often keep a record of sickness. This record can include the number or sick days taken, the reason for the absence and detail of when in the day/week/month sickness is taken. This type of standard sickness record would normally be held in your personnel file, and should be available through your employer’s Human Resources department.

Long-term sickness leave

In the event that an employee is suffering from a long term illness, a responsible employer should:

  • regularly check in with the employee, whether verbally or written;
  • make sure that the contractual sick pay arrangements are clear;
  • facilitate a return to work interview.

The employer may wish to talk about a change in work and working arrangements, as well as the length of time that the role can be left open for. If the employee should become disabled due to their illness, ‘reasonable adjustments’ can be expected in their working environment that may allow them to continue in their role with some modification of their surroundings or workload.

When returning to work, employers should put in place a ‘getting back to work’ programme. Such a programme should involve:

  • the offering of more flexible hours, through either shorter days and/or remote working;
  • a catch-up on any news and work-related progress;
  • the delivery of training on any new software, equipment or new processes/procedures.

Losing your job while on long-term sickness leave

Employees can be dismissed while on long term sickness. Employers should however only consider this as a last alternative after considering:

  • part-time or flexible hours;
  • the extent of the employee’s estimated recovery;
  • whether assistance would be required in carrying out duties;
  • a lighter workload with fewer responsibilities, in addition to any re-training required.

Holidays and sickness

Even when off sick, employees accrue holiday entitlement as though they were working. If an employee would lose out on any leave to which they are statutorily entitled because they are off sick during the last period in which they could have taken it, up to 20 days of this should roll over to the next holiday year.

Even when off sick, employees accrue holiday entitlement as though they were working.

If an employee is not entitled to sick pay, or if they wish to do so for any other reason, they may take a period of sickness as holiday instead. The opposite is also true, in a sense – falling ill immediately before or during a holiday allows an employee to instead take that holiday as sick leave, and are entitled to take the intended period of holiday at a different time.

If an employee believes that they have been the victim of an unfair dismissal as a consequence of long-term sickness, they may take their case to an employment tribunal.

Taken ill on holiday? What to do if you have a genuine travel insurance claim

Nicole Rogers from DAS Law explains what you need to know about claiming on your insurance or taking legal action if you get sick on holiday.

July 2019 Learn more
Maternity leave – what expectant mothers are entitled to

Expectant mothers should be aware of their rights relating to maternity leave, maternity pay and any other issues likely to affect their employment situation due to their pregnancy.

April 2018 Learn more
Parental leave and time off for dependants

If you have a child or other dependant, you might be entitled to take leave from your job if you need time off to look after them.

April 2018 Learn more

Read more from the DAS Law blog

Employment disputes How Maternity, Adoption and Shared Parental Leave regulations are changing this year

In this Bitesized Edition, we look at the new Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations, set to come into force on 6 April 2024.

February 2024
Employment disputes 9 things employers need to know about apprenticeships

With National Apprenticeship Week here, we explain what employers need to consider regarding apprenticeship schemes and their legal obligations.

February 2024
Employment disputes How flexible working regulations are changing this year

Amendments to the current flexible working legislation will come into force this year. Any flexible working applications made on or after 6 April 2024 must be dealt with in accordance with the regulations.

January 2024
Employment disputes Holiday Pay Guidance from the Government – The Bitesized Edition

The Government has issued guidance on calculating holiday pay to simplify holiday entitlement for irregular hours and part-year workers.

January 2024
General advice , Employment disputes Be on your best behaviour at your work Christmas party

Charlotte Ellis. Legal Adviser at DAS Law, looks at the rules surrounding the office Christmas party.

December 2023
Employment disputes Don’t get a red card while watching the World Cup at work

If you are planning on watching World Cup matches at work there are a number of important things to consider.

August 2023
Employment disputes How employers can prevent harassment or bullying in the workplace

Employers can be liable for employees who have subjected other employees to harassment in the workplace if they have not taken reasonable steps to prevent harassment.

July 2023
Employment disputes How “purpose or reasonable effect” can affect workplace harassment cases

Harassment in the workplace has come under a spotlight in the last few years and employers have put their policies and practices under the spotlight to ensure they are doing all they can to eliminate it.

July 2023
Employment disputes Restrictive covenants in employment contracts – what the government is proposing

employees are departing who may have had access to trade secrets, strategic plans, financial plans and customer or client confidential information.

July 2023
Employment disputes The Sunset Clause Removal: retaining and discarding EU Law – The Bitesized Edition

Following Brexit, in September 2022 the government introduced a bill creating powers to revoke, amend, replace, restate or assimilate approximately 2,400 pieces of EU Law.

June 2023
Employment disputes The Carer’s Leave Bill – The Bitesized Edition

This bill introduces the right for employees to take up to one week’s unpaid leave per year for employees who are providing or arranging care.

April 2023
Employment disputes Neonatal Care Leave & Pay – The Bitesized Edition

In 2022 the Neonatal Care (Leave and Pay) Bill was backed by the Government, and on 24 March 2023 the Bill passed second reading at the House of Lords.

April 2023
Employment disputes Worker Protection (Amendment of Equality Act 2010) Bill – The Bitesized Edition

This bill has been introduced to amend the Equality Act 2010 (EqA 2010) relating to liabilities for harassment.

April 2023