Frequent or long-term sickness absence from work could put your job at risk.
This can happen if your employer argues that you are no longer capable of satisfactorily fulfilling your work responsibilities. It could place you at risk of what is known as a capability dismissal.
Here we examine your rights and responsibilities when absent from work because of ill-health or sickness. We look at what you should do if your employer begins proceedings against you concerning the length or frequency of your absence.
If this becomes an issue, it will be important that you familiarise yourself with your employer’s sickness absence policy (if it has one).
Treatment during sickness absence
You are perfectly entitled to take time off work if you feel too unwell to attend.
In all probability, your employer will have procedures concerning who you should notify and when, if you are not well enough to work. In that conversation, you should tell your employer the general nature of your illness and when you expect to be well enough to return to work.
You may also agree how often you will keep in contact. This will be to update your employer on your condition and when you anticipate returning to work. It should not be unnecessarily frequent. If you think you might be well enough to return to work in a day or two, daily contact would be fine. But for longer-term sickness, weekly or even monthly updates should be enough.
You should be permitted to self-certificate your sickness for up to 7 days absence without needing to see your doctor. However, after this you must produce a Fit Note from your GP, in which your doctor will confirm the causes and (where necessary) likely length of your absence.
Once you return to work, your employer may also expect you to attend an informal meeting with your line manager to review your absence. This will typically involve:
- Checking that you are fit enough to return and, if so, on what duties.
- Explaining the consequences of your sickness for your colleagues or the business more generally, and;
- Offering you any support that might be necessary.
Discussion on the nature of your sickness should not amount to an interrogation, an attempt to provide medical advice, or be overly intrusive.
By doing this, your employer will not only be doing what any good employer should do by checking on your wellbeing. It will also be ‘covering its back’ in case it may want to take action against you in the future because of your sickness absences.
Payment during sickness
Your contract of employment may entitle you to company sick pay.
Where this applies, the amount will typically be related to your length of service and consist of a period when you remain on your full salary, followed by a further period on reduced pay.
Or, if there is no company sick pay scheme, your salary may stop for the duration of your sick leave. Instead, so long as you meet the eligibility criteria, after four consecutive days’ sickness (which includes weekends and bank holidays) you should receive Statutory Sick Pay (SSP) of £92.05 per week (from April 2018).
SSP is normally paid by your employer on the day you usually receive your salary and continues for up to 28 weeks; following which, you may qualify for Employment Support Allowance.
If you do receive company sick pay, SSP runs concurrently and will be included within the total amount you receive.
Frequent short-term absences
If you are frequently off work because of sickness, your employer may require you to attend a Formal Meeting as part of its capability procedures. This would be to examine the causes of your absence. It could be the start of a process that could lead to your dismissal if your attendance doesn’t improve.
Different companies have different ‘trigger points’ for deciding when to start formal proceedings. Typical examples can include three separate periods of absence within any rolling three or six-month period. Or when there is a pattern of absences such as on specific days of the week.
Whilst you will not have a right to be accompanied at informal Return to Work Meetings, you will for more Formal Meetings. These would occur where the frequency of your absence is discussed, and you are told there might be consequences for you if your attendance doesn’t improve.
At these Formal Meetings, you will be given the opportunity to offer underlying reasons for your absence; including any conditions that might increase the frequency with which you are likely to be too unwell to work.
You might even have a condition that qualifies as a ‘disability’ under the terms of the Equality Act 2010. Where this is so, you could have a right to ‘reasonable adjustments’. These could include the need to make changes to your role, or apply to you higher sickness absence ‘trigger points’ than other staff.
You will almost certainly be set a target to improve your level of sickness absence within a specified period of time. This will normally be to below your employer’s sickness absence ‘trigger points’. You have a right to Appeal against the outcome of any Formal Meeting.
Your progress at the end of this period will be reviewed at another Formal Meeting. Here, you will be told whether you have met your employer’s expectations. If your employer doesn’t believe you have made the required improvement, you may be set a further period within which to improve. At this second Formal Meeting, you may be told that failure to improve your attendance record could result in your contract of employment being terminated on grounds of capability.
At a third and final Formal Meeting, you could be dismissed on grounds of capability if your employer is adamant you have not made sufficient improvement to your attendance.
In all cases, you will be entitled to Appeal against the outcome of any Formal Meeting.
Long-term sickness absence
Your employer might also ‘start the ball rolling’ on formal proceedings, if you have been absent from work for sickness for a long period of time. This will normally be at least 28 days continuously, although it will often not happen until you have been away from work for several months.
This will involve your employer asking you to attend a Formal Meeting. It could be held in your office, your home or somewhere else where you would be comfortable to meet. Like all Formal Meetings, you will have a right to be accompanied.
The purpose of the Formal Meeting will be for your employer to discuss and understand the causes of your illness or sickness absence. You will likely be asked how much longer you anticipate being off work. Also, whether there are there any changes that could be made – either long-term or short-term – to facilitate your return to work. This could include a phased return to work, where you build up your working hours and responsibilities over a period of several weeks.
If you are not well enough to attend a Formal Meeting, you should ask your GP to confirm this in writing; sending details to your employer. Your employer should be accommodating if an alternative date can be arranged within a reasonable period of time. If not, a Formal Meeting may go ahead without you; with the Hearing Manager issuing you with an outcome based on his or her assessment of the situation.
After each Formal Meeting, you will be provided with a timeframe after which your employer will review your situation.
Following at least two Formal Meetings, if you have not returned to work, your employer could arrange a Final Formal Meeting. Here, you could potentially be dismissed on grounds of capability. How long your absence would need to last before an employment tribunal would agree your employer had acted reasonably may include a number of factors, including your employer’s size.
You have a right to accompanied to all Formal Meetings.
Occupational health report
If your health or absence is a cause of concern to your employer, you may be asked to consent to an occupational health report.
We would normally advise you to consent to such a report. This will help provide evidence of the nature of your condition and whether it could qualify a ‘disability’ under the Equality Act 2010. It may also make recommendations for any changes required to assist you in returning to work.
Mental health conditions – such as anxiety, depression and work-related stress – can often be causes of long-term ill-health and sickness.
Today, there is much less stigma attached to mental illness than there was in the past. Many employers now publish mission statements outlining their commitment to support staff who are suffering mental illness. Still, it often appears that this amounts to little more than lip service. Nevertheless, you should speak to your employer, explaining how you are struggling to cope. Your employer will then be obliged to take into account its duty of care to you.
Below are some links to websites that you might find useful if you are suffering from poor mental health:
- NHS Choices ‘Moodzone’
- Rethink Mental Illness
- Mental Health Foundation
- ACAS – Mental Health in the Workplace
Your first step if you are struggling with your mental health is to speak to your doctor, before you reach the tipping point when you can no longer cope.
You might have grounds for pursuing compensation for Personal Injury claim, if a deterioration in your mental health condition is directly due to your employer’s negligence or improper conduct.
If you are unlikely to be able to return to work, you may have strong grounds for reaching a Settlement Agreement with your employer. This may be attractive to you to avoid the protracted process of pursuing a claim. In turn, your employer could avoid the risk of high legal costs and payment of substantial compensation.
Equality Act 2010
Your absence from work may relate to a long-term medical condition that is recognised by the Equality Act 2010 as a ‘disability’.
To qualify as a disability, you must you have:
“a physical or mental impairment and the impairment has a substantial and long-term adverse effect on (your) ability to carry out normal day-to-day activities”
To be ‘substantial’, your condition cannot be trivial in nature. To be ‘long-term’, your condition is expected to last at least 12 months.
An occupational health report is likely to comment upon whether your condition may be treated as, or is related to, a disability.
If you have a ‘disability’, you are legally entitled to be provided with ‘reasonable adjustments’. These might concern the length of time or frequency that you can reasonably be expected to be off work given your condition. Alternatively, they may involve changes to your role or working arrangements to enable you to continue working.
Click here for further details on the Equality Act 2010.
Whilst on sick leave, you continue to accrue your statutory entitlement to holidays of 28 days a year (inclusive of bank holidays).
You can cancel holiday that you have already booked if you would have been unable to use this entitlement because of your condition. In fact, you can even switch to sick leave if you become injured or unwell whilst on holiday.
You then have three possible options:
- Take your paid holiday during your period of sickness absence. This may be attractive if you have exhausted your contractual or statutory sick pay.
- Use your untaken holiday entitlement upon your return to work.
- If your contract is terminated, receive payment for all holiday accrued whilst you were unable to work.
For long-term sickness, you are able to carry forward up to 20 days holiday entitlement from the previous holiday year. Overall, this means you can accrue up to a maximum of 48 days holiday entitlement whilst on sick leave.
Permanent health insurance
As part of your contract of employment, you may be entitled to receive income from permanent health insurance if you are unable to work for a long-period of time.
This is usually arranged by your employer via a third-party insurer. So long as you meet the criteria, payment will often begin once you have exhausted your company’s sick pay entitlement.
Capability proceedings and dismissal
If you are unable to achieve your employer’s attendance requirements, you could be dismissed on grounds of capability. This could occur if your employer says you are unable to fulfil your responsibilities under your contract of employment
To avoid an unfair dismissal claim, your employer must:
- Fully investigating your case. This includes attempting to hold meetings with you. It must also have reviewed medical notes and occupational health reports you may have consented to provide.
- Hold Formal Meetings with you. These would included discussing with you your absence and its concerns. Also, the prospect of you achieving its attendance requirements and the possible consequences of you failing to do so. These meetings should be documented, with you provided the opportunity to give feedback on the accuracy of the minutes.
- Permit you to Appeal against the outcome of any Formal Meeting.
- Enable you to exercise your right to be accompanied by either a colleague or representative of a union at all Formal Meetings.
- Be able to show that any requirements placed upon you are reasonable in the circumstances. You must also have been given every reasonable opportunity to achieve them.
- Make ‘reasonable adjustments’ if your condition is to be treated as a ‘disability’ under the provisions of the Equality Act 2010.
If it does all this, your employer could terminate your contract of employment if you do not meet its attendance requirements.
Should this happen, you must receive payment for:
- Your full salary for your contractual notice period. This is paid even if you have run out of sick pay entitlement. After completing two years’ service, this will be at least two weeks’ notice; increasing by an extra week for every additional year completed up to statutory maximum of 12 weeks’ notice. Your contract of employment may entitle you to longer notice than these minimum requirements.
- Payment for any holiday entitlement you accrued but have been unable to take during your period of sickness absence.
If your employer has treated you improperly and failed to follow proper procedures, you may have a case for claiming unfair dismissal.
To bring a claim of unfair dismissal, you must make a claim within three months (less a day) of being dismissed.
Click here for details on how to make an employment tribunal claim.
WRS’s union specialists have considerable experience of workplace representation.
They have advised, supported and represented at meetings many employees who have been off work because of ill-health or sickness, and face the danger of having their contracts of employment terminated on grounds of capability. They have also often secured Settlement Agreements and helped preparation for employment tribunal proceedings.
If you are asked to attend a Formal Meeting, you only have a right to be accompanied by a work colleague or representative of a union. And if your job is at risk, you will surely want professional support. WRS can arrange for you to be accompanied by a representative of a trade union, even if you have not previously been a union member.
With WRS you can be sure you are in good hands.