Sickness Absence
Find out whether your employer has treated you legally while you are ill
Get advice about your rights and how to enforce them
Clear advice in plain English - no confusing legal jargon
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Sickness absence employment law
Unfortunately, many of us suffer from illnesses during our working life resulting in periods of absence. The law provides a level of protection to ensure that our employers understand that and support us through illness. On the other hand, employers rely on work being carried out by their employees and are understandably keen to get employees back to work.
Some employers have sickness and absence policies which set out the way they deal with long term or short, intermittent absences. An employer can manage your absence in different ways, as long as it does so by using a fair procedure within a reasonable time.
What should I be paid when I am off sick?
Some employers pay ‘occupational sick pay’ while others just Statutory Sick Pay. This information will be outlined in your contract of employment or staff handbook.
Occupational Sick Pay is often based on your salary and usually for limited periods of time. It can also depend on how long you have been with your employer.
Statutory Sick Pay is available for a maximum of 28 weeks. You will need to be off sick for a period of 4 days to be eligible. If you are receiving just Statutory Sick Pay, you may find it challenging to meet your bills. This link will provide you with more information about Statutory Sick Pay - https://www.gov.uk/statutory-sick-pay/overview.
Can I be dismissed while on sick leave?
You can be dismissed without having the option of pursuing an unfair dismissal claim if you have not been employed by your employer for at least two years. However, if you have a disability under the Equality Act 2010, you may be able to pursue a claim for disability discrimination in the Employment Tribunal.
Your employer is likely to investigate your sickness absence differently depending on whether you have taken short and intermittent spells of absence or if you have had one long period of absence.
A policy may set out a level of attendance that you are expected to adhere to and your absences will be monitored accordingly. There may also be a procedure you should follow when you take sickness absence. If your attendance is being monitored and there is no improvement an employer may invoke their disciplinary procedure, which could potentially result in dismissal. An employer must follow a fair and reasonable disciplinary procedure. If they do not, you may be able to claim that you were unfairly dismissed.
If you are trying to argue that your dismissal following sickness absence is unfair and you have not followed your employer’s policy, your case will be weakened.
If you go on long term sick leave, the employer will have to show that it has investigated your health condition and your ability to return to work. In most cases the employer will obtain medical evidence from an occupational health professional. An assessment will be made about when you will be fit to return to work and whether any reasonable adjustments can be made to assist your return.
If you are not happy with the way that your sickness absence is being handled, you might wish to take legal advice.
What happens to my annual leave if I am on sick leave?
Your annual leave will accrue whilst you are on sick leave. If you are on annual leave and become sick you can reschedule your annual leave. If you have untaken annual leave and your current annual leave year ends, whilst you on sick leave, it can be carried over into the following annual leave year.
Can I take time off for doctors, dentists or other health appointments?
Your contract of employment or handbook may explain your rights in relation to time off for doctors, dentists or other health appointments. An employer can request that you make these appointments out of office hours or that you make your time up.
A pregnant employee has a legal right to time off work to attend antenatal appointments. A father, or the partner of a pregnant woman, is also entitled to take unpaid time off from work to attend two antenatal appointments with their pregnant partner. Parents expecting a child through surrogacy are also entitled to this time if they intend to apply for (and expect to meet the conditions of) a Parental Order .
Your employer might be legally required under the Equality Act 2010 to allow you time off to attend medical appointments if you suffer from a disability.
You are entitled to time off to deal with an emergency involving a dependant. This could be your spouse, partner, child, grandchild, parent or someone who depends on you for care. You can take a reasonable amount of time off to deal with the emergency. There is no set time limit. Once the emergency has passed you may be asked by your employer to take annual leave or parental leave if you need more time away from work.
Bear in mind that your employer is entitled not to pay you for emergency time off or they may ask you to make the time up.
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Address: Spencer Shaw Solicitors Limited
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