Working whilst signed off sick isn’t strictly prohibited by UK law, although an employer is under a statutory duty to ensure the health and wellbeing of its employees. Caution must therefore be exercised by employers if asking or allowing an employee to return to work early.
The following guide for employers and HR personnel provides practical guidance around sick leave and fit notes, and the legal risks around employees working whilst signed off sick.
What are an employee’s rights whilst signed off sick?
If an employee is unwell and, as a result of their ill health, is incapable of working or would put others in the workplace at risk, for example, if their condition is contagious, they will be entitled to take time off work.
A period of sick leave may also be justified where an employee has symptoms of stress, depression or anxiety, or any other type of mental health condition with debilitating effects.
An employee absent from work on sick leave for either a physical or mental health condition may be entitled to Statutory Sick Pay (SSP). To qualify for SSP, the employee must earn an average of no less than £123 per week and have been ill for 4 or more days in a row, including non-working days, such as weekends or bank holidays. An eligible employee will usually be entitled to be paid SSP from the fourth day they’re off sick. This is then payable for a period of up to 28 weeks at a rate of £116.75 per week, provided the employee informs their employer that they’re unable to work within any timeframe set by the organisation, or within 7 days.
If the organisation has an occupational sick pay scheme, regardless of the nature of their illness, the employee may be entitled to enhanced contractual pay including, for example, sick pay from day one of their absence, a higher rate pay or pay for more than 28 weeks.
What proof must an employee provide whilst signed off sick?
Where an employee is off work sick for seven days or less, they will not need to provide the employer with proof of their illness as they are able to ‘self-certify’. Organisations typically a procedure for self-certification, for example requiring employees to send an email to their line manager or HR explaining why they were absent from work.
The employee may be required to complete form SC2 to claim SSP if they have been sick for 4 or more days in a row.
If an employee takes sick leave for more than seven consecutive days, including weekends and bank holidays, they must provide the employer with a fit note from their GP or other suitable medical professional. The fit note, which has replaced the old sick note, is ‘a statement of fitness for work’ from an employee’s GP or any doctor responsible for a patient’s care, such as a hospital specialist. This will set out the date the employee was assessed and the nature of their condition for which they’ve been absent from work. This need not be a formal medical diagnosis, although the doctor will usually state if the condition is thought to be work-related.
The doctor can either sign off a patient as ‘not fit for work’, and say how long this is for, or assess that individual as ‘may be fit for work’ taking into account certain advice. If potentially fit for work, the doctor will make recommendations to facilitate the employee’s return. This could include a phased return, altered hours, amended duties or workplace adaptations. The doctor may also make comments on the functional effects of the employee’s condition, although the fit note is about fitness for work in general and is not usually job-specific.
A patient is assumed to be fit for work, with or without any conditions, when the period set out in the fit note has come to an end, although their fitness for work may need to be reassessed. If this is the case, this will usually be recorded in the fit note.
What are an employer’s obligations whilst an employee is signed off sick?
Employers are under a statutory duty to ensure the health and wellbeing of employees, even whilst signed off sick. This means that all reasonable steps must be taken to support the employee’s recovery, and to facilitate their return to work once they’re fit and able.
In discharging their statutory duty, employers should not normally ask an employee assessed as unfit for work to resume any duties until the period of incapacity as set out in the fit note, and without the need for further assessment, has come to an end. The advice given in a fit note isn’t binding on an employer, although this should usually be accepted at face value.
In cases where the fit note advises that the employee is potentially fit for work, the employer should discuss with the employee what changes can be made to accommodate their return in line with the general advice given. Again, it is for the employer to determine whether to accept the recommendations set out in the fit note, as these are advisory only.
The employer may opt to seek alternative advice, for example, by asking the employee to undergo an occupational health assessment for more specific recommendations on ways in which an employee’s return to work can be facilitated. If the employer decides not to adopt the suggestions made by the employee’s doctor, or any alternative recommendations, the employee should not usually be treated as fit for work until expiry of the period covered by the fit note.
The employer should also bear in mind that a separate statutory duty arises in relation to any employee suffering from a disability. This means that where an employee has been diagnosed as suffering from a long-term health condition, the employer may be under a duty to make reasonable adjustments to ensure that the employee is not substantially disadvantaged when resuming their job role. This could include things like amended duties or altered hours, although deciding what adjustments to make will depend on the individual circumstances of the case. Often, advice from an occupational health specialist will be needed.
Can employees work whilst signed off sick?
An employee can go back to work at any point they feel able to do so, even if this is before their fit note expires. The employee may have recovered from their illness sooner than expected. An employee also doesn’t need to be fully fit to return to work, where being allowed to resume light duties or reduced hours can often help with an individual’s recovery, especially if being off work is having a negative impact on their mental health.
The employee does not need to revisit their GP or provide proof of fitness for work, although the employer must be satisfied that returning to work will not exacerbate the employee’s illness, slow their recovery or put any other employee at risk. Employers must also ensure that employees do not feel under pressure to return to work before they’re fit to do so.
If an employee wants to resume work prior to the end of the period covered by the fit note, this should be thoroughly discussed with the employee before any decision is made. The employer should keep a clear written record of the discussion, with reasons for the decision.
The employer can ask the employee to return to their GP for further advice or clearance to work, or undergo an occupational health assessment so that appropriate steps can be taken to mitigate any risks. The employer should also consider carrying out a risk assessment, not least where this is required under the terms of any employer’s liability insurance.
What are the legal risks around working whilst signed off sick?
If an employee returns to work early, before the end of the period covered by their fit note or contrary to medical advice, this may give rise to a number of legal risks for the employer, especially where this is likely to make their condition worse or prolong their recovery.
Where the employer is found to be in breach of its duty to ensure the health and wellbeing of an employee, this could result in a claim for damages for any worsened ill-health suffered in consequence. This is not uncommon in cases of work-related stress, where a premature return to work can often lead to further prolonged periods of incapacitation. This can then give rise to all sorts of complex issues around the provision of reasonable adjustments, and any decision to dismiss an employee who is no longer capable of doing their job, in the context of any claim for unlawful disability discrimination and unfair dismissal.
Equally, any employee pressured into coming back to work too soon could feel forced to resign, potentially exposing the employer to a claim for constructive dismissal.
What steps can be taken to minimise the risks of working whilst signed off sick?
Some employees, especially those who are working remotely, may choose to continue to work despite being unwell. This could be for all kinds of reasons, for example, if they can’t afford to be signed off sick, they’re worried about getting behind with work or they have concerns around their job security. However, even where an employee chooses to work whilst signed off sick, this does not necessarily negate the employer’s duty to ensure their health and wellbeing.
It’s vital that employees are made aware that they shouldn’t be working if they’re medically advised not to do so, and to report any illness to their line manager or HR. A good way to ensure that everyone knows what should happen in the event of sickness is to include this in any workplace absence policy. The policy should set out in detail the procedures for reporting and managing sickness absence, including how, when and after what period of time an employee will be contacted to discuss their recovery and return to work.
By creating an effective policy that covers the organisation’s stance on working — or rather, not working — through illness, this can prevent the tricky issue of working whilst signed off sick from arising in the first place. By supporting the employee’s wellbeing, this will also encourage employee’s to rest and recuperate, in this way ensuring a speedier return to work.
Need assistance?
DavidsonMorris’ HR advisers and employment lawyers support employers with all aspects of workforce management, to support effective performance and positive cultures while meeting legal duties. For specialist advice, contact us.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
