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Knowing your rights when off work sick

Published 01 October 2018

Knowing your rights when off work sick

When you’re not feeling at your best and you’re unable to attend work what you may or may not be entitled to will probably be one of the last things on your mind.

The number of working days lost to absence due to illness has fallen to the lowest rate on record, according to research from The Office for National Statistics (1).

The study shows that employees took an average of 4.1 sickness absence days in 2017. In comparison 7.2 days were taken in 1993, which is when records began.

Researchers said reasons for the reduction in sick days is likely to include the facts that private sector workers are less likely to be paid when off work ill and presenteeism (2), where people go to work despite being sick, could be on the rise.

So what are your rights when you are off work sick?

Sick pay is always a major worry. There is no absolute entitlement to company sick pay, as it is paid at an employer’s discretion.

However, you may be entitled to Statutory Sick Pay (SSP) (3), irrespective of what is in your contract of employment. To qualify you must:

·         be classed as an employee and have done some work for your employer

·         have been ill for at least 4 days in a row (including non-working days)

·         earn an average of at least £116 per week

·         tell your employer you’re sick before their deadline - or within 7 days if they do not have one

The current (September, 2018) statutory sick pay rate is £92.05 per week, which can be paid by an employer for up to 28 weeks. Company policies will also clarify matters in regards to sick pay, how it may be paid and what you can expect.

If you are off work because of an illness any contact from your employer during this time may cause some anxiety. However, such contact can be considered reasonable and appropriate management. It can also provide a reassurance that you are not being ignored.

The type of contact should be dependent on the nature of the illness as it may aggravate the symptoms of conditions such as depression, stress and anxiety. So employers will need to tread carefully and consider it the contact really is necessary, justified and appropriate.

If you’re off sick while going through the disciplinary process this does not necessarily mean it will be stopped. An employer is not expected to put off a disciplinary hearing indefinitely because you are off.

Reasonable attempts should be made to allow you to participate in the process and your fitness to do so should be established. The employer should only go ahead in your absence once all options have been exhausted.

You can be dismissed as a result of your sickness absence and while on sick leave (4). An absence and sickness policy will set out when action will be taken in regards to your level of attendance.

Fair procedures should be followed, appropriate efforts should be made to establish the state of your health, any necessary support or reasonable adjustments should be considered and warnings issued before a decision is taken to dismiss any employee as a result of their health.

We all need a break from work at times, and understanding the impact sickness can have on holidays is also important.

If are ill during your holiday leave, you are entitled to rearrange your holiday for another date later in the year. It will mean you have to follow the normal absence procedures and that you are likely to receive sick pay rather than holiday pay.

While you are ill you cannot be forced to take holiday leave.  A European Court of Justice ruling also means that you should still be entitled to accrue holiday while off work sick and be able to carry it forward to the next holiday year (5).



1.Sickness absence falls to the lowest rate on record - Office for National Statistics [Internet]. [cited 2018 Sep 24]. Available from:

2.“Shocking” numbers work while ill. BBC News [Internet]. 2018 May 2 [cited 2018 Sep 24]; Available from:

3.Statutory Sick Pay (SSP) [Internet]. GOV.UK. [cited 2018 Sep 24]. Available from:

4.Can you be dismissed while on sick leave? 2016 Feb 11 [cited 2018 Sep 24]; Available from:

5.Odey B. Sick leave: European court confirms holiday can be carried forward [Internet]. Personnel Today. 2016 [cited 2018 Sep 24]. Available from:


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A reputation built on success

For employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 


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