Your rights to paid time off when you are sick or injured may seem quite low on your list of priorities, but they are important, especially in a workplace that brings you into regular contact with patients.
This page sets out your rights to paid time off work when you are injured or unwell if you are not covered by NHS Agenda for Change.
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When you are offered a job, your job offer should clearly identify what sick pay is offered. Your employer must honour any promises they make about sick pay. Contractual promises can only be changed with your agreement.
Your employer is also legally required to include information about their sickness absence and sick pay policies in the written statement of employment particulars, or in a separate document they must give you within a month of starting work.
From 6 April 2020, your employer has had to give you this information in the written statement from day one of your new job.
Your employer must pay you at least Statutory Sick Pay (SSP) if you meet the qualifying criteria. Many employers provide contractual sick pay that is better than SSP.
Statutory Sick Pay
Rates of Statutory Sick Pay (SSP) are available on the government's SSP website, with rate revised every year in April. It is a flat rate and is paid for up to 28 weeks.
To get SSP in any job, you average weekly earnings must be above a 'Lower Earnings Limit', set by the government and reviewed each April.
If you have more than one job and you earn enough to qualify for SSP, you can claim SSP from each job.
You can claim SSP whether you are an employee or an agency worker.
To get SSP, you must be ill for at least four days in a row, including weekends and bank holidays. But you only get SSP for the days you normally work.
You are not paid for the first three days of sickness (including non-working days). These are called ‘waiting days’. If you are ill again within eight weeks and each period of illness lasts at least four days, the two periods will be linked and you will not have to serve the waiting days again.
To claim SSP, you must notify your employer that you are off work due to sickness or injury. Your employer can set rules about how to notify, so check your employer’s sick pay procedure.
Your employer is not allowed to demand a GP certificate (called a Statement of Fitness for Work or ‘Fit Note’) for the first seven days of absence, unless they are paying you contractual sick pay that is more than SSP. Instead, you must be allowed to self-certify. Usually you fill in an Employee Statement of Sickness Form (SC2) which you give to your employer.
After seven days, you will need to give your employer a Fit Note to prove that you are still entitled to SSP. You need to keep renewing your Fit Notes to cover your whole period of absence.
Fit Notes
After the first seven days of absence, your GP will give you a Fit Note (a Statement of Fitness for Work) to prove your right to SSP or to contractual sick pay. Check your employer’s procedures carefully and make sure you cover the whole period of absence with Fit Notes to avoid putting your sick pay at risk.
GPs are not allowed to issue Fit Notes for the first seven days of sickness absence.
Sick pay from your employer
Many employers pay contractual sick pay that is better than SSP. Contractual sick pay cannot be below the level of your SSP entitlement.
Your employer can set its own rules about how sick pay is calculated and how long it lasts. Your employer should not change these rules without consulting with you and asking for your agreement.
Your employer can make contractual sick pay conditional on you agreeing to a medical examination by a company doctor or occupational health provider, but the rules should be clear and not unreasonable.
Most contractual sick pay schemes provide a fixed number of weeks of sick pay at full pay, often followed by a further period at half pay. Contractual sick pay usually includes any SSP you are entitled to.
Sometimes employers only agree to pay sick pay at their discretion. In theory, this means that they are free to decide whether or not to pay it and for how long. However, even if the contract says that sick pay is in the discretion of the employer, the law says that they must not exercise their discretion irrationally or engage in discrimination or victimisation. They must pay you at least SSP.
Phased returns from sickness absence
Especially if you have been off work for a while following a lengthy illness or an operation or serious injury, it is often desirable to gradually readjust to your old job or hours by means of a phased return, say, shorter hours, changes to your start time or duties.
Check your sickness absence policy to see if there is a procedure in place for phased returns. If not, you should have a discussion with your manager or with HR to agree a basis for your return to work. It’s a good idea to have the support of your GP, who can make some recommendations.
Check that you don’t stand to lose out financially if you return to work on temporarily reduced hours. Your employer may already have a policy in place, for example, paying sick pay for hours that you don’t work, or paying full pay despite your reduced hours, to make sure that you are not worse off. If not, try to reach an agreement over the length of the phased return and on payment.
Make sure you agree clearly (and in writing) that any changes are only temporary.
If you have a disability, a phased return can be a reasonable adjustment under the Equality Act 2010. If an adjustment is reasonable, your employer must make it.
Keeping in touch when off sick
The Health and Safety Executive views regular contact from your employer during sickness absence as good practice. It helps to keep work on the agenda and makes it easier for you and the employer to plan for a successful return.
Sickness absence procedures often include rules for keeping in touch at pre-set intervals. But it is important to have clear boundaries, to ensure your employer does not act in a bullying or intrusive way risks. If they do, they may be breaching the employment contract.
If you are on long-term sick leave, you should be kept in the picture about important developments at work, such as restructuring or voluntary severance opportunities.
It is sensible to agree arrangements for important work communications, such as email, and to check these regularly.
Holidays when off sick
If you are away from work on long-term sick leave due to an illness or injury, you will carry on building up holiday while off work.
There is no legal reason why you cannot take holiday while off sick. A holiday can often be a good way of aiding your recovery. But it is important to carefully follow all the employer’s normal rules about booking holiday and to keep your employer in the picture.
Holidays taken when off sick must be paid at your normal wages, even if you have exhausted the company sick pay.
If you don’t take your holiday while you are off sick, you should be able to carry some or all of this holiday into the next holiday year.
Medical reports and your employer
Information your employer holds concerning your health is protected by data protection laws. It must be relevant and accurate. Your employer must keep it confidential and secure, and kept no longer than necessary.
For your medical information about you should only be shared at work - for example with your line manager or HR – you must have given clear written permission. You can place limits on what information you want to be shared.
Your employer needs your written consent to obtain for a medical report from your GP (or any consultant following a GP referral). You have the legal right to see the GP report before it is passed to your employer and to add any comments or corrections.
It is sensible to cooperate with reasonable attempts by your employer to find out about your health condition and prognosis. Otherwise, you run the risk that your employer will decide to cut your sick pay, or even end your employment, without the benefit of medical advice.
Pregnancy-related sickness absence
If you are off work with a pregnancy-related illness, your employer must pay you the same contractual sick pay as any other employee.
It is against the law for your employer to treat you negatively because of pregnancy-related sickness absence. This would be pregnancy discrimination. This is why, for example, your employer must never take into account pregnancy-related sickness absence when selecting employees for redundancy.
If you are off work with a pregnancy-related illness during the four weeks before your maternity leave is due to start, your employer can make you start your maternity leave early. Many employers ignore odd days of sickness absence.
You cannot take sick leave and get sick pay while on maternity, adoption or shared parental leave, even if you fall ill or are injured while on leave.
If you are pregnant, a new mother or are breastfeeding, and your work or your working conditions place your health or that of your baby at risk, your employer should conduct a risk assessment and talk to you about any temporary changes to the way you work (for example changes to your working hours or duties) to deal with the risk. Any changes should only be made with your agreement.
If there is no other sensible way forward, your employer must suspend you on full pay until the risk has gone away. This is the woman’s legal right to a ‘maternity suspension’. You can find out more on the New and Expectant Mothers page of the Health and Safety Executive website.
Dismissal
If you are concerned that you may be at risk of discipline or dismissal as a result of your sickness absence, you should contact the CSP as soon as possible.