How Does Sick Leave Protect Your Rights?
Unless blessed with superhuman health, everyone will need to take sick leave from work at some point in their life. The UK has protocols designed to ensure workers can recover from mental and physical illnesses safely, but how effective is sick leave in practice??
With the coronavirus pandemic seeing large numbers of people suffering from Long COVID, understanding your sick leave rights is crucial, especially as the virus continues to baffle health and human resources practitioners alike.
The World Health Organisation (WHO) in its Constitution (1946) proclaims “the right to the highest attainable standard of health”. A UN Factsheet on the Right to Health explores what this entails, including the right to healthcare access, as well as other necessities for a healthy life, including safe drinking water and sanitation. As well as breaching rights drawn up internationally, interference with sick leave by employers may breach UK legislation, including employment, equality and human rights law.
What Is Sick Leave And How Does It Work?
In the UK, employees in contracted roles – full-time or part-time – have the right to take time off work if they are ill, which is called sick leave . Sick leave is meant to protect people with medical conditions from discrimination in the workplace. It allows anyone with an illness – short-term or long-term – to return to work at a reasonable pace and to be compensated financially during their time away from work.
Employment solicitor Danielle Parsons elaborated: “Sick leave is time off work which employees can use to be absent from work to rest and recover their health when they are too unwell to work. It can also be used to attend health or medical appointments.”
Employees who are off work for seven days or fewer do not need to provide a ‘fit note’ or other proof of sickness. When the employee returns to work, an employer can ask them to confirm that they have been off sick – this is called self-certification. The employer and employee can agree on the best way to verify illness, such as filling in a form for human resources (HR) or providing details of the reason for their sick leave in another written form.?
When a contracted employee is sick for more than seven days, including non-workdays, they must provide their employer with proof of illness in the form of a ‘fit note’ – a health practitioner’s written statement of the worker’s fitness (or not) for work – which used to be called a sick note.?
A fit note will specify that an employee is either ‘not fit for work’ or ‘may be fit for work’. The latter means employers should discuss any changes that may help the employee return to work, such as flexible hours or providing a standing desk.
Statutory holiday entitlement is accrued even when an employee is on sick leave, regardless of how long they are off sick. Any holiday left unused due to illness can be carried over into the next year. If someone is sick just before or during a holiday, this can be taken as sick leave instead.?
An employee can request to take paid holiday for the time they are off sick – for example, if they do not qualify for sick pay – but an employer cannot force employees to take annual leave when they are eligible for sick leave.
How Does Sick Pay Work?
Sick pay entitlement can vary between employers, as they are not legally required to provide their own scheme. If an employer does have their own sick pay scheme, it is called a “company sick pay scheme” and this usually means that you will receive full pay during any sick leave – up to a set number of weeks, determined by the employer.?
Typically, sick pay schemes kick in after a minimum period of service, such as a three-month probationary period. After this period, an employee is usually entitled to normal pay up to a certain number of weeks, which is decided by each individual employer. Following this initial period, long-term sick leave may mean that you will receive half-pay for a further period before any sick leave becomes unpaid.?
If an employee is not entitled to any sick pay under the company scheme, the employer should still pay Statutory Sick Pay (SSP) to eligible employees. The government sets out a minimum SSP of ￡96.35 per week if you are too ill to work. This is paid by your employer for up to 28 weeks.?
People receiving Statutory Maternity Pay are not eligible for SSP. Additionally, if someone has a continuous series of linked sick periods lasting over three years, they cannot claim SSP. To be linked, these periods must be eight weeks or fewer apart and last for four or more days each time.
How Does Sick Leave And Sick Pay Work For Freelance And Self-Employed Workers?
If you are a self-employed or freelance worker you are not eligible for SSP. In fact, the government recently rejected a petition calling for freelancers to be provided with SSP.??
To qualify for sick pay, you must be an employed worker, meaning you cannot work for yourself and receive SSP. Essentially, the same applies to sick leave as freelance workers who control their own working schedules, so they are responsible for taking sick leave when necessary.
Responding to the petition, a spokesperson for the Department for Work and Pensions said: “It would not be appropriate to require the self-employed to pay themselves statutory sick pay, as they are their own employer. The welfare system provides a safety net to support the self-employed.”
That alternative safety net is the benefits system. For a self-employed or freelance worker who is unable to work due to a health condition, Employment and Support Allowance (ESA) can help plug the gaps. Providing applicants have paid enough National Insurance Contributions (NICs) in the last two to three years, ESA payments are made every two weeks.?
During the ESA assessment period, applicants get an “assessment rate”, which is ￡57.90 per week for under 25s and up to ￡73.10 for those aged 25 and over. Post-assessment, there are two groups: the work-related activity group and the support group. The first refers to those who can get back to work and the weekly payment for them is ￡73.10. The latter covers those who are unable to get back to work due to ongoing health problems and they are paid ￡111.65 per week.?
Another option to cover sick pay as a self-employed worker is to secure Income Protection Insurance . Policies vary but they can cover a self-employed worker all the way up until retirement or for short-term periods of six months to a year. Essentially, the policy allows self-employed workers to claim against it during short-term or long-term illness. Usually, this comes in the form of a monthly payment to help maintain a consistent standard of living and to cover expenses.?
How Has Sick Leave And Sick Pay Been Adapted For The Pandemic?
To accommodate Covid-19, instead of fit notes, self-isolating employees who cannot work because of the virus can get an ‘isolation note’ online from NHS 111 .?
During the pandemic, workers get SSP if they are:
As of 13 March 2020, employees and workers were meant to receive SSP from their first day of isolation, but they must isolate for a minimum of four days to receive it. If they, or the person they were isolating for, tests negative for Covid-19 before four full days of isolation, then they are not eligible for SSP. Employers with less than 250 employees can reclaim Covid-related SSP for the first two weeks of an employee’s sickness.?
The scheme is administered by local authorities and applicants can receive the main payment or a discretionary payment. The former was designed to assist people in work and on benefits and the latter is for those who miss out on the main payment due to not receiving the qualifying benefits.?
Trades Union Congress (TUC) research showed that, based on Freedom of Information request responses received from 175 councils, only three in ten applications are accepted.?
What Are The Consequences Of Blocking Sick Leave?
If an employer blocks sick leave, they could be liable to a discrimination claim and an employee may be able to take them to an employment tribunal.?
Parsons advised: “If you are concerned that you are not receiving sick pay and you are entitled to it, then you should seek legal advice urgently and without delay as you may have potential legal claims in relation to the failure to pay.”
If an employee has two or more years of service and they believe they were unfairly dismissed, they can take their case to an employment tribunal to be reviewed. Failure to pay contractual sick pay could amount to a claim for a breach of contract as well. For disabled workers, unfair dismissal or failure to pay sick pay could be tantamount to a case of discrimination.
What Obstacles Are There To A Worker Getting Sick Leave?
Sick leave relies on every employer treating their employees fairly. However, it is not provided so readily when it comes to certain illnesses. Martha* from Liverpool had a “hellish” time at one job when she required sick leave because of her mental health. Her boss resisted because he “didn’t believe in depression”.?
“I needed mental health sick leave and the doctor wanted to sign me off for six weeks because she thought I was on the verge of a breakdown,” she said. “I came back and he hadn’t done any of the stuff that I would’ve done while I was gone, so coming back was awful as well. I found out about three months later that he had been investigating if he could sack me while I was on sick leave or when I came back without having to make me redundant.”
If an employer does not provide full pay for sick leave, taking it is not always a possibility for employees who cannot afford to live on the current level of SSP.
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This was true for Martha, as she explained: “I really struggled with being able to afford to go on sick leave because sick pay is much less than what I was being paid. I worked out that I could just about afford four weeks off.”
During the pandemic, these obstacles have become more complicated for employees who have developed Long COVID. As understanding of the condition is still developing, it can be difficult to secure a diagnosis and explain it to a manager.
“I think it is incredibly difficult to advocate for yourself in the workplace,” said Dr Jenny Ceolta-Smith , an occupational therapist, lecturer and researcher who was diagnosed with Long COVID around August 2020. “Union support is one way, if people are members of the union; getting advice from the GP that can be added onto a fit note around what might be helpful for returning to work; and looking at the information that’s available from different organisations, such as the society of occupational medicine. However, this is a lot of work that an individual’s got to do themselves and, really, they need somebody that can actually navigate the system and support them through a return to work process, as it can be very stressful.”
Some GPs, in particular, seem to be having trouble accessing appropriate support to return to work while recovering from Long COVID.?
Dr Susannah Thompson , a GP who also has Long COVID, said: “GPs don’t always have easy access to occupational health because GPs can be self-employed or partners or work for small organisations. There are GPs who have lost their jobs, after being unable to complete a set phased return, or return to work at the same intensity, due to fatigue, brain fog, post exertional malaise and other symptoms.”
How Can Employers Support Workers In Returning to Work?
Employers have a responsibility to support their employees during sick leave and this duty extends to assisting their return to work. This support can take many forms.?
For David Hockaday, a contract risk team leader, sick leave and a phased return to work played a crucial role in assisting his ongoing recovery from Long COVID. First taking two months off to recover from an acute Covid-19 infection in 2020, Hockaday was then signed off between January and July 2021 due to ongoing Long COVID symptoms.?
“When people ask what Long COVID is like, I tell them that it is like having the worst hangover you can imagine, whilst being severely jetlagged, while suffering suffocating altitude sickness,” he said. “There would be some days where I would be chairing meetings and I would just keep losing the thread of conversations. My colleagues were understanding but it was quite disruptive, particularly in big meetings where decisions needed to be made.”
Hockaday was living with post-exertional malaise, caused by physical and cognitive activity. Fortunately, his workplace was supportive and Hockaday took the time he needed to recover at his own pace.?
“Employers and colleagues need to know that Long COVID is very real, it is relatively common and it is extremely frightening, debilitating and life-limiting for sufferers,” he added. “We want to work but we cannot. We need support, compassion, patience and empathy. These things will help us return to work quicker and in a more sustainable way.”
Employers managing employees with Long COVID need to acknowledge that symptoms vary dramatically between patients, meaning there is no “one size fits all” approach to return to work practices for the condition.
Ceolta-Smith, who is also a member of the Long Covid Employment Support Group , said: “I think there’s just so many hidden expectations in the workplace by managers and colleagues that if you return to work, you’ll somehow be able to do what you did before, and probably what a lot of people did before becoming ill was work a lot of extra hours, especially in the NHS and education.”
Ceolta-Smith says that many workers with Long COVID need to work reduced hours, have the flexibility to work from home where possible and have access to extended phased returns to work.??
“There needs to be more education and training for employers, particularly for line managers, human resources, and for employers to be more open about being flexible and creative,” she added. “There’s a whole range of things that can be implemented to help people back to work and they don’t necessarily have to be things that are very costly. Access to Work may be able to provide funding for this too.”
Hockaday found that an extended phased return enabled him to remain at work without compromising his Long COVID recovery.
“The best thing about the return to work plan was the buffer day off that the occupational health team suggested I take on a Wednesday,” he said. “This was a lifeline and meant that stress wasn’t able to build up over the course of the week. I was never far away from a rest day, whether that was a weekend or a Wednesday and I truly believe the longer two-month return to work plan has been a key reason as to why I have been able to return to work and make a lasting and sustainable contribution.”
Ceolta-Smith advocates for employers to take a “creative” approach to assist workers with Long COVID to remain in work.?
“What I would really like is for all employers to take note of the recommendations in occupational health reports, GP fit notes and access to work assessments and from occupational therapists involved in vocational rehabilitation,” she said. “Occupational therapists may also be using the AHP Health and Work report . I’d like employers to not see those reports as a tick-box exercise, but to really look at the advice and to be flexible and creative about implementing them.”
Employers have a responsibility to ensure that their workers are not pushing themselves to return to work before they are truly ready, especially in sectors that are accustomed to putting workers’ needs last.
“Doctors, nurses and healthcare professionals will often put the care of patients ahead of themselves, so they will put patient safety first and not take sick leave unless they have to,” said Thompson. “But Long COVID is difficult because you can’t predict it. What I can do changes from week to week, day to day. Return to work for those with Long COVID needs understanding, often a long phased return period, with reduced hours and responsibilities, which responds quickly to changes in levels of fatigue. I was getting better until about eight weeks ago and then I got a new heart problem and now the fatigue is worse. Relapsing is a really common pattern with Long COVID.”
Ultimately, clear communication is a cornerstone for helping Long COVID patients successfully return to work.?
“People need to be able to have open conversations with line managers, to create a well thought out return to work plan – but one that’s not written in stone: it needs to be regularly reviewed,” said Ceolta-Smith. “However, everything shouldn’t be at the discretion of the line manager: there should be clear company policies as well.”
What Resources Are Available For Employers And Staff?
The government has several schemes available to help employers and employees manage sick leave and returns to work. There are also other resources available that can help support workers get back to work safely.?
Does Sick Pay Need A Long COVID Update?
During the pandemic, the government has provided various financial support schemes, but not everyone has benefited from them.?
The Trades Union Congress (TUC) has put together a policy proposal advising the “rapid introduction” of a scheme that “could help tackle coronavirus and save many workers from hardship.”
The TUC is advocating for the government to:?
How Is The Pandemic Affecting Workers’ Rights?
While the government has updated sick leave and pay guidelines to include information on COVID-19, support is lacking for Long COVID patients. As the condition is still being researched, it is difficult for workers to acquire accurate fit notes, enable reasonable adjustments and secure an appropriately phased return to work.?
Ceolta-Smith added: “Lots of patients with Long COVID are still waiting to access health-related services, and some of these are also trying to return to work. That needs addressing urgently so that people living with the symptoms can be seen, assessed correctly and have the most up to date treatments that are available and rehab when appropriate.”
Many workers with Long COVID have lost jobs or left professions to protect their health and, with an estimated two million people now living with the condition in the UK , gaps in care after contracting COVID-19 risk leaving large numbers of people behind.?
The government has published guidelines on how to take sick leave when affected by COVID-19, but those living with long-term effects of the virus are in danger of seeing their rights to health and freedom from discrimination infringed by ill-equipped workplaces operating without sufficient government support.??
*Names with an asterisk have been changed to protect the identity of the interviewee.