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 
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. 
Your rights will also depend upon your employment status. Employees have more employment rights than workers or self-employed people. 
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Can I be dismissed while on sick leave? 

Your employer may dismiss you if they have a legally fair reason. Reasons for a fair dismissal include being guilty of misconduct or that you aren't capable of doing your job. 
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 for unfair dismissal
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. If you believe your dismissal was unfair, you must have worked for your employer for at least 2 years to be able to make a claim. 

What if I have a disability? 

If you have a disability under the Equality Act 2010, your employer has a duty to make reasonable adjustments that help reduce the difficulty you face in doing your job because of your disability. The adjustments will depend upon your role and disability. 
Your employer must also avoid indirectly discriminating with policies or practices that impact less favourably on you because of your disability.  
If you believe you have been treated unfairly in relation to your disability, you may be able to pursue a claim for disability discrimination in the Employment Tribunal. In this case, you do not need to have worked for your employer for 2 years.  

Can I take time off work 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. 

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 are on sick leave, it can be carried over into the following annual leave year. 

What should I be paid when I am off sick? 

Some employers pay ‘occupational sick pay’ while others just pay 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. 

Get in touch 

If you need advice about your rights during sickness, or think your employer has breached your rights, get in touch for legal advice using the details below.  

Get in touch 

Do you have a legal matter you'd like to discuss with us? Get in touch using the details below or use the form here and a member of our team will be in touch to discuss your enquiry. 
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Phone: 0121 817 0520 
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Address: Spencer Shaw Solicitors Limited 
St Mary's House, 68 Harborne Park Road,  
Harborne, Birmingham, B17 0DH 
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Opening hours: 
Monday - Friday 9:00AM - 5:00PM 
Saturday, Sunday & Bank Holidays - Closed 
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