A common problem that Direct 2 Lawyers find is that employees are unaware of their rights and duties when they’re ill and consequently absent from work. This post will therefore address the entitlements and obligations of employees when they’re absent from work because of illness.

Employees do not have a statutory right to sick leave – whether it is provided is discretionary to the individual employer. However, a right to sick leave may be contractual, either express or implied. Generally, employers do grant employees a reasonable amount of sick leave as good practice – no-one wants demoralised or sick employees in the workforce. Employees must be genuinely sick, though. Unless there is an express or implied contractual term, employees will not have a right to take time off to attend routine dental or medical appointments.

What employees do have a statutory right to is sick pay. Under s.1 Employment Rights Act 1996 (“ERA 1996”) employees have a right to be provided with terms and conditions relating to incapacity for work due to sickness or injury, including provisions for sick pay. There isn’t a statutory right to receive full pay but there may be a contractual right (discretionary or not on the employers behalf) to pay full pay whilst the employee is sick for a defined period.

To qualify for statutory sick pay (“SSP”) an employee must:

1. Be absent for at least four consecutive days from work

2. Have not claimed more than 28 weeks SSP in any period or linked periods of incapacity for work

3. Have average weekly earnings equal to or higher than the the Lower Earnings Limit (currently £102 per week)

You must notify your employer of your absence as soon as possible. If you do not do so and you are absent from work because of illness for equal to or greater than seven calendar days then your employer may withhold SSP. Further, you will probably have an ongoing obligation to inform your employer of the reasons for your absence and when you hope to be able to return to work. Your employer cannot require a fit note prior to eight days after your being sick. However, most employers will require your obtaining and providing them with evidence of your illness (normally a “fit note”) after eight days or more of sickness.

If you do notify your employer and are absent from work for four or more consecutive days then you are entitled to receive SSP. If you are entitled then SSP is paid directly from the Department of Work and Pensions to the employee.

Entitlement to SSP ceases on the earlier of your returning to work, your most recent fit note expiring, or your using up your SSP allowance.

An important point to note is that if you present yourself as ready and willing to carry out your contract of employment at work then your employer must pay you your contractual benefits (salary, bonuses etc.). However, employers can reasonably refuse to let you work if they doubt your ability to work at capacity and your job involves serious or potentially dangerous work.

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The Direct 2 Lawyers Employment Team post daily on interesting employment law cases, Employment Tribunal judgments and Employment Appeal Tribunal judgments. All of the Employment Team posts are written by qualified specialist employment lawyers

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