What are my rights if I'm off sick at work?

What are my rights when I am off work?

If you're currently off work due to sickness absence you might be worried about what will happen to your job if you don't go back soon. Your employer might pressure you to resign but you should consider your rights before you do.

Can my employer dismiss me?

If you're an employee with two years continuous service your employer has to follow a fair procedure when investigating your capability to do your job. It is a fair reason to dismiss an employee, even with two years continuous service, if they're not capable of doing their job - but it should be a last resort and a fair procedure should be followed. This section of the national Citizens Advice website explains what your options are if your employer wants to dismiss you because of long term sickness.

If you're not an employee or you don't have two years continuous service, you might still be protected by a clause in your contract or a rule in the employee handbook which explains what the employer should do if you’re absent. Alternatively, you might have protection if you are disabled under the Equality Act. Otherwise, your employer may be less inclined to carry out a reasonable investigation, and it can be potentially very difficult to challenge a dismissal.

If you are protected, your employer has to carry out a reasonable investigation before deciding what to do next. What they have to do depends on the individual circumstances of your employment and the size of your employer. The Employment Tribunal is interested in whether the employer’s conduct fell within the ‘band of reasonable responses’ available to the employer and cannot replace the employer’s decision with their own. In most cases, your employer will ask you to provide medical evidence such as a fit notes and keep in touch with you whilst you’re off work - this is to ensure that you feel supported.

What if I am off work because of an accident at work?

If you’re absent because of an accident at work, this is not something your local Citizens Advice can help you take forward, so you’ll need to contact a specialist personal injury law solicitor usually no later than 3 years of the accident or the date you ought to have been aware of the accident. Find out more about taking action about an accident at work on this section of the Citizens Advice website.

What should my employer consider before deciding whether to dismiss me?

If you’re protected, the employer should find fact of multiple issues before dismissing you, such as: the nature and likely duration of your illness; the need for your attendance at work and the difficulties of arranging cover; the changes or reasonable adjustments that could be made to your job role or working environment to support you back to work; and the nature and length of your service with your employer.

The ACAS codes of practice on grievances and disciplinaries and guidance on capability procedures encourage employers to be supportive of staff when investigating their capability to work. If you are protected and the employer doesn’t follow a fair process, this could expose the employer to a possible claim in the Employment Tribunal.

What happens at an occupational health assessment?

The occupational health assessment informs your employer about your capability, it will set out what options are available and may make specific recommendations. If your employer asks you to go to an occupational health assessment, you should attend if you feel well enough, even if you don’t feel you’re quite ready to go back to work.

At the assessment, a medical professional will ask you questions about your condition(s), your work, and how those condition(s) might affect your ability to do your role. You can give the assessor medical evidence and ask them questions about what support is available to help you go back to work. The assessor will make a decision about your capability to work, and they might make recommendations for your employer to make changes to your work, like making reasonable adjustments, claiming a grant from the Access to Work scheme to pay for things to help you return to work, or arranging a phased return, or they might recommend that your employer give you more time to get better. If you’re near to retirement and you have a private pension, you might be able to get ill health early retirement - you’ll need to check the pension policy to find out.

It is difficult for our advisers to comment on challenging a medical report when it comes down to an issue of medical fact, so if you have another medical professional supporting you, such as a nurse or GP, you could ask them for help with challenging the decision. There are also specialist advice agencies like SCOPE and Remploy who provide free advice aimed at helping people back into work.

What if I disagree with the occupational health assessment or the employers decision?

If you disagree with the assessor or their report, you can ask for a copy of the report and ask to comment on the report before they send it to your employer. Unless medical advice is inaccurate or the assessment lacks proper examination, the employer can rely on the occupational health report, but if you have your own medical evidence that is inconsistent with the occupational health report, you could ask the employer to get a third opinion. You should do this early as it can be difficult to challenge the report later.

If you think that the employer has made a decision about your capability before consulting an occupational health adviser, or has treated you unfairly during the process, you should consider raising this with your employer early and speak to one of our advisers for further assistance.

What can I do if I am being pressured to resign?

Your employer shouldn’t be contacting you to encourage you to resign and in some cases this can amount to discrimination if it relates to your disability or another ‘protected characteristic’ or could also amount to harassment and bullying. If this is happening to you, you should raise this with your employer early and speak to one of our advisers.

Resigning might not be the right option for you whilst you’re off work sick because you can usually accrue your statutory holiday entitlement and carry some of your holidays over to the next holiday year, and you might recover in the near future, enabling you to go back to work. This is confirmed on the ACAS website here.

What if I am dismissed?

If you’re protected and you have been dismissed for capability reasons, you might be able to bring a claim for wrongful dismissal, unfair dismissal or discrimination against your employer if your employer has treated you unfairly or hasn’t followed a fair procedure. You’ll need to act quickly, there’s usually a time limit of 3 months from the date of dismissal (or the date of the act complained of if you’ve not been dismissed yet). You need to contact ACAS early conciliation to start a claim before the time limit expires if you want to bring a claim in the Employment Tribunal. If you can’t get legal help through your union membership or insurance, speak to one of our advisers for further assistance.

What benefits can I get?

You might be able to get help with your problem at work if you’re a member of a trade union or have cover from your insurer. You should also check if you can get statutory sick pay, contractual sick pay, grants from the local council, and other welfare benefits such as Universal Credit, Employment and Support Allowance, Personal Independence Payment and/or Industrial Injuries Disablement Benefit, depending on your individual circumstances. For a free benefit check, you can use a benefit calculator or call our FREEPHONE Adviceline on 0808 278 7882.

Still need help?

If you need advice about a problem at work or help to bring a claim against your employer, please call our FREEPHONE Adviceline on 0808 278 7882 or email enquiries@northlancashirecab.org.uk.