Take a healthy interest in rights to sick leave

16 July 2004

Ian Hunter

Employers’ concerns about levels of absenteeism among their employees have made the headlines in recent weeks. Tesco reportedly recently announced that it would not pay staff in respect of the first three days of any period of sickness. Sickness entitlement for many employees is much more limited than people often imagine.

What is your entitlement to sick pay?

In the absence of anything to the contrary in your contract of employment your entitlement is restricted to Statutory Sick Pay (“SSP”).

How much will I get paid?

If your average pay before the deduction of tax and National Insurance is £79.00 per week or more the SSP entitlement is £66.15 SSP will be paid by your employer for up to a maximum of 28 weeks during any three year period. You will not be paid for the first four days of absence. Nor will you qualify if you are over the age of 65 on the first day of illness.

How do I qualify?

You must notify your employer of your absence and provide evidence of the reason for your illness. You will only be eligible if you have been absent through sickness for four or more consecutive days of sickness. Weekends and bank holidays count for the purposes of this calculation. For absences of between four and seven days it is usually sufficient for the employee to “self-certificate” the reasons for the absence. If you are absent for more than seven days it will be necessary to obtain a note from your doctor.

How does SSP differ from contractual sick pay?

Contractual pay is the rate of sickness pay if any agreed between employer and employee and will usually be stated to include any provision for SSP.

If your contract of employment does not include any provision for contractual sick pay you will normally only be entitled to SSP. Contractual sick pay arrangements vary from industry to industry. Some employers link the length of sickness entitlement to the employee’s length of service, other employers leave the decision as to whether contractual sick pay should be paid to its sole discretion. However, it is not unusual for employers to provide contractual sick pay to pay in respect of the first 2-4 weeks of absence. Some very generous employers may pay for it up to 26 weeks.

What is the position if you take a day off to watch the Euro-football but claim it as a sick day rather than holiday?

Contrary to popular belief, taking an unauthorised day’s absence is likely to amount to gross misconduct. If the employer has proof of unauthorised absences it will be well within its rights to commence disciplinary proceedings. If the employee is unable to justify the absence it is likely to lead to immediate dismissal without any compensation.

Can I be dismissed for being sick?

Employees do have some protection against being dismissed on the grounds of ill health.

The Disability Discrimination Act 1995 protects employees (regardless of their length of service) who qualify as “disabled”. To do this they must have an illness or incapacity which has a substantial and long term impact on their ability to carry out day to day activities. The DDA provides that discrimination (for example, dismissal) against those covered by the DDA is unlawful unless it can be justified.

An employer will also be liable if it fails to make reasonable adjustments to accommodate a disabled person and cannot prove that this failure is justified.

Further, all employees who have over a year’s continuous service have a right not to be unfairly dismissed. If an employer is going to dismiss an employee on the grounds of sickness it must show it has acted reasonably.

Therefore before an employer decides to dismiss, either an employee covered by the DDA or one protected from unfair dismissal, it should usually arrange for a medical examination of the employee to determine their condition and prospects of returning to work. The employer should then consult with the employee regarding the medical report before weighing up whether it is realistic to continue the employment until the employee recovers.

If the employer fails to take such steps the employer is likely to be exposed to claims. Claims under both the DDA and in respect of unfair dismissal should be submitted to an employment tribunal within three months of the date of dismissal. Awards in respect of unfair dismissal are made up of two parts, first there is the basic award of between £135 - £405 for each completed year of employment depending on age and length of service and secondly the compensatory award which is subject to a maximum of £55,000. Awards under the DDA are not subject to any cap.

[Employers can also face significant damages claims if they dismiss employees with long term illnesses, before permanent health insurance benefits kick-in.]

[What is permanent health insurance?

This is a policy which can be taken out with a number of providers which enables employees who have a long term illness to receive payments during the illness typically equal to 2/3rds of the employee’s normal salary.

If the PHI cover is provided for under a scheme funded by the employer it is usually a requirement that the individual receiving the benefit remains employed. Cover typically comes into effect once the employee has been absent for a continuous period of more than six months.]

First published in The Times: Money on 3 July 2004.