Sick Leave

Most employers will have dealt with employees who are too ill to work.

When taking sick leave, employers need to ensure correct procedures are followed from both sides. That way, you'll be able to minimise workplace disruption and losses.

However, if an employer mismanages absences, you could end up losing employees, paying compensation, and dealing with reputational damage.

In this guide, we'll look at what sick leave is, offering statutory sick pay (SSP), and ways to support employees with ill-health.

What is sick leave?

Sick leave is when an employee cannot attend work, due to illness or injury. The cause of their sickness may class as a physical illness, like muscle fatigue; or as a psychological issue, like depression.

Employees usually take sick leave for illnesses that last a day or two. Other times, it might take a week for them to recover.

Whilst their sick, employers still have a legal duty of care to their employees. This can include things like, how to comply with paid leave rights (like statutory holiday entitlement, sick pay schemes, and assisting their return to work.

Why do employees take sick leave?

Employees can present an array of reasons for taking sick leave. It's important for every employer to deal with each absence appropriately.

Some of the most common reasons for an employee to take sick leave are:

• Minor illness: Less serious ill-health can include things like colds, stomach aches, and migraines. These absences might be small matters, but they can cause major financial and production losses.
• Mental health: One of the most common illnesses reported by employees are mental health This is often seen within 'white-collar' businesses where work demands are mentally strenuous and incessant.
• Musculoskeletal injuries: From back pain to pulled muscles, it's hard to deal with these illnesses, as well as predict when recovery will end. They’re commonly reported in laborious workplaces, like the construction or warehousing industry.
• Medical appointments: When an employee has to attend a medical appointment, it can be reported through sick leave days.
• Pregnancy and delivery: Employees who are expecting a baby are more likely to take sick leave. Pregnant sick leave may include things like medical appointments.

What is the difference between short-term and long-term sick leave?

When an employee falls sick, it can be categorised as either short-term or long-term sickness leave.

If an absence relating to ill-health lasts for a week or less, the employee may provide a 'self-certification'. Self-certification is allowed during the first seven days of their absence.

This can be provided verbally or in writing (like an email) to their employer. Alternatively, employees can use the HMRC's SC2 form, but using this health-form isn't a legal duty or requirement.

If an employee is off sick for longer than a week, it's known as long-term sick leave. Sick employees need to request a Statement of Fitness for Work. (This is also known as a sick or fit note).

Fit notes can only be issued by a certified health professional; like a hospital doctor, GP, or nurse. An allied health professional (AHP) may also provide a Health and Work Report. This similar document is considered close to a fit note; and is often used by occupational therapists or physiotherapists.

A fit note outlines what the ill-health is, recovery estimation, and work capability. Once the employer has discussed the medical advice in the fit note, they can make reasonable adjustments to the employee's working conditions.

Employees are allowed to return to work before their fit note ends–if this is professionally approved. They aren't obliged to provide another doctor's note to confirm this. The employee can make a self-judgement on whether they feel fully fit enough to attend work. You can offer additional help and adjustments to make their return to work easier.

It's important to note whilst a fit note disclosing ill-health, the 'Fit for Work Scheme' no longer exists. Instead, their employer should discuss a 'Return to Work Plan' which can be used in the same way as a fit note (if the proper criteria is met).

What is the UK law on sick leave?

There are several legal obligations and requirements surrounding paid sick leave. Every employer should comply with sick pay rights, 'return to work' rules, and dealing with long-term sick leave.

Most employees have access to information on paid sick leave from their employment contract, handbook, and policy. Their contract will state how much sick pay they’re entitled to, as well as how many sick days you’ll provide.

Statutory sick pay (SSP) is a financial payment offered to employees on sick leave. Sick pay is directly paid to staff by employers and is subject to taxes and national insurance deductions.

Statutory sick pay laws are outlined under:

1. The Statutory Sick Pay (General) Regulations 1982.
2. The Statutory Sick Pay (Medical Evidence) Regulations 1985.

As of 2022, the minimum amount of paid statutory sick pay is capped at £99.35 per week. Employees can claim full pay of SSP from up to a 28-weeks minimum period.

The 'period of incapacity to work' (PIW) is when an employee cannot work for at least four consecutive days. These dates are taken into account during the 28-week period.

To work out PIW, the calculations include non-working days, the weekend, and bank holidays. Employees receive sick pay for the days they'd normally work. Sick pay isn’t paid on the first three days of absence; these are known as the 'waiting days'. (This is unless they've been paid SSP within the last eight weeks and are eligible for it again).

Who qualifies for statutory sick pay (SSP)?

Only certain employees, who are off work sick, may qualify for paid sick leave. Eligible employees are offered statutory sick pay (SSP) if they:

• Have 'employee'
• Earn at least £123 per week (on average).
• Have been off work sick for at least four consecutive days.
• Have notified their employer within seven days (or in accordance with your policy rules).

Sick pay is the legal minimum amount offered to employees. An employer can offer a different payment through contractual sick pay. But employees cannot be paid anything lower than the legal SSP amount.

Employers may use a 'Statutory Sick Pay Calculator' to estimate how much pay staff will receive during their absence.

Part-time employees can qualify for sick pay, but only through certain financial conditions. They also need to earn at least £123 per week (on average); and may be entitled to government support allowance.

Sick pay can also be paid to non-employees like:

• Casual staff.
• Agency workers.
• Temporary workers.
• Fixed-term workers.
• Zero-hours contract workers.

How many sick leave days is an employee allowed?

In the UK, there are no legal number of sick days an employee is allowed. This means employers often set their own number of 'acceptable' sick days. For example, offering one to three days of paid sick leave per year.

But employers should offer sick days which are reflective of their work industry. For example, if your work is particularly laborious, employees may take additional leave to recover or rest. This could be 10 sick days per working year.

But whilst an employer offers a rounded number of sick days to their staff, it's ideal to highlight what's an unacceptable amount. Maybe an employee has a habit of 'falling ill' every Friday. Or maybe they've suddenly called in sick after their holiday request was denied.

What is the Bradford Factor Score?

Many employers will look at average sick days taken in the UK for relevance. Other companies will use the 'Bradford Factor Score'. This is an absence-oriented 'key performance indicator' (KPI) which calculates potential disruption factors relating to individual absences.

The Bradford formula is S2 x D = B.

• S stands for ‘spells’ which are absences over a set period.
• D is the total number of days of absence over the same period.
• B is the resulting Bradford factor.

For example, an employee recently became ill and was sick for 10 days straight. A different employee is relatively healthy but became ill in the same period, on four separate occasions, for 5 days. Their Bradford scores are calculated as:

• 1 (2) x 10 = 10
• 4 (2) x 5 = 80

Between the two, the second employee has theoretically caused more disruption to the business because of their absence. An acceptable Bradford score is below 200; anything more warrants concern. For example, here is a breakdown of the scores and potential means of management.

• Under 50: A standard score for the average employee.
• Over 50: The initial step for basic monitoring.
• Over 100: Potentially the start of a habit that should be highlighted.
• Over 200: Some form of action may be required.
• Between 200 to 500: An issue has been flagged and must be addressed.
• Over 500: Potential grounds for disciplinary action, like warnings before a dismissal.

Every employer should bear in mind no two Bradford scores are the same. It should relate to the context of the situation and how you interpret them. The scores aren't an indicator for denying sick pay or leave rights. It should be used to understand contributing factors to their absence and how you can address issues.

How to manage sick leave in your workplace

When an employee falls ill, the consequences can affect their employer's business on a whole.

The most important thing to remember is that you must manage these impacts, whilst supporting employees with ill-health. By doing so, any employer can grow strong relations, as well as establishing a healthy return to work.

Here are ways to manage sick leave in your workplace:

Present a sick leave policy

The best way to manage employees with ill-health is through a sick leave policy. These guidelines highlight business rules and legal regulations on sickness absence.

For example, a sick leave policy can include:

• How to report sick leave and request sick pay.
• Who to contact on the first day of the absence.
• Proof of illness (and if a fit note is required).
• Employer rights to medical records (after gaining consent).
• Managing intermittent and long-term sick leave.

Outline procedures for reporting sick leave

When an employee decides they're unable to attend work due to ill-health, they must follow the correct steps.

Employers need to outline pay procedures if they offer contractual sick pay or set out SSP entitlements. Staff should send details or provide a fit note on the eighth day of sick leave. If they don’t, they could lose their right to sick pay entitlements.

Ill employees should contact their line-manager or use an 'absence from work' report system. These allow employees to provide suitable information on their illness, like a sick note explaining a potential 'return to work' date.

Provide proof of sickness

Depending on the situation, an employee can provide proof of sickness in a number of ways.

If their absence is for seven days or less, the employer cannot ask for medical evidence or fit notes. Instead, employees can provide proof of sickness through self-certification which outlines their conditions. As well as a declaration on their health state and capability to work.

If they're ill for more than seven days, employees must provide a sick note issued by a medical professional. The fit note will state whether the employee is either 'not fit for work' or 'might be fit for work'. If they may be fit enough, make amendments to their job conditions so their return to work is smoother.

Offer sick leave entitlements

An employer's business may decide to offer paid sick leave to staff who fall ill. Offer statutory or contractual sick pay entitlements through their employment contract. It's important to highlight when this support allowance stops.

When employees require additional leave, you can ask them to take unpaid sick leave. But don’t advise them to use statutory holiday entitlement. Be aware, an employee may not be able to use sick pay alongside other pay entitlements (like paid maternity leave).

Provide occupational health support

When an employee is off sick for a long time, their employer should provide occupational health (OH) support. For example, like a medical referral to an occupational therapist.

By offering OH support, it establishes mutual respect, value, and loyalty. In the end, sufficient support helps the employee return to work in a healthy manner.

When employees are feeling better, hold return to work interviews on their first day back. Use this time to fully understand their ill-health and whether they require additional support from their employer.

Manage their return to work accordingly

Dealing with sickness in the workplace is an unavoidable issue for every employer. But without sufficient absence management, it can prove detrimental for an employer's business.

Every employer should manage return to work through the following ways:

• Present a clear sick leave policy.
• Request self-certification, fit notes, and other medical evidence.
• Provide additional support, sick pay entitlements, and regular communication.
• Support employee welfare (like carrying paid holiday or annual leave to the next leave year if unused because of ill-health).
• Assist with their return to work (by reinstating normal pay and the same responsibilities).
• Seek support from non-work groups, like an occupational therapist or trade union representative.

Can you dismiss an employee because of sick leave?

If an employee is unable to perform their work tasks because of ill-health, they could be dismissed. But an employer should only action this as a last resort and through fair procedures.

Every employer must follow a capability dismissal process. They must show that the employee is unable to complete their work duties, resulting in breach of employment contract.

Being ill doesn't affect an employee's right to take sick leave or be paid sick pay. And if they've suffered from workplace injuries, they could raise claim to a trade union representative and tribunal. Here, the employer could face discrimination or unfair dismissal claims–along with personal injury claims.

Can an employee take sick leave during their notice period?

Yes, an employee can take sick leave during their notice period. This is regardless of whether they're leaving on their own accord or through redundancy.

Whether they'll receive full pay during their notice or not is another matter, as this depends on the length of their service under their employer. The rules on statutory notice periods are outlined under the Employment Rights Act 1996 (ERA).

If the employee resigns and is given the statutory minimum notice, they should get full pay for the notice period.

Can an employee work whilst being signed off on sick leave?

In some cases, an employee might choose to work despite being signed off on sick leave. This might relate to their work commitments. Or it could be because of personal reasons, like meeting benefit entitlements or living expenses.

Continuing to work whilst off sick can easily worsen conditions–extending the end of their recovery. If you think an employee is working whilst being signed off as sick, you could risk breaching duty of care. Every employer needs to ensure their business isn't the cause of negative health and well-being.

An ethical question also arises–it's not advisable to let employees work whilst being sick. It lowers the quality of work, not to mention, the risks to public health.

If an employee wants to work whilst being sick, it's best to reject their request. Explain the importance of their welfare and not to stress about work commitments. If they raise monetary issues, offer financial aid like helplines or even salary advancements.

On the other hand, if an employee provides a fit note stating their capability, you may consider their request.

What if an employee's sick leave proves to be false?

In some situations, an employer might discover the reasons for a person’s sick leave proves to be false. Here, you should adhere to your sick leave policy and action procedures accordingly.

If you suspect an employee has falsified their sickness absence, as an employer you should:

• Ask them to report or call in to explain their sickness and potential length of absence.
• Request medical evidence, like self-certification or fit notes. (Remember, this depends on the type and length of the sickness).
• Hold a 'return to work' meeting to establish conditions and treatment.
• Explain repeated absences that affect business productivity may lead to a further period of investigation. The employer can also state disciplinary measures for unauthorised or fraudulent absences, like demotions and dismissal (if it's fitting).

However, some long-term sick leave can relate to a disability. If this is the case, the employer should provide reasonable adjustments before taking disciplinary action.

What if an employee runs out of sick pay?

It's common for employees to run out of sick pay, especially if they're on long-term sick leave.

Employers may choose to offer financial aid, like an advance on their normal wages. Some employees may be entitled to governmental monetary support which can help during difficult times. If eligible, an employee can claim:

• Employment and Support Allowance (ESA).
• Universal Credit (UC).
• Personal Independence Payment (PIP).

The employer must send the employee a SSP1 form on or before the beginning of the 23rd week. This is if SSP is expected to end before sickness or within 7 days if ending (if it ends unexpectedly).

It's important to remember during sickness absence, their employment contract still stands. This means they legally remain as your employee; so absent procedures and policies must be applied whilst they're off work sick.

Get expert advice on sick leave with Peninsula

Sickness absence can be difficult to manage whilst running a business. But without following proper procedure or legal compliance, you're at risk of serious detriment.

Staff may end up losing morale, respect, and loyalty. Employers could even face compensation fees and reputational damage from bad absence management.

Peninsula offers expert advice on sick leave. Our HR team offers unlimited 24/7 HR employment advice which is available 365 days a year. We also provide advice through multi-lingual support and fully trained counsellors who are ready to help.

Seek advice from one of our HR consultants. For further information, call our telephone number 0800 028 2420.