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Sickness

This guide for RCN members includes advice on sickness meetings, sick notes, occupational health, sick pay, stress, annual leave, redeployment and dismissal.

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Self-certification

Until the seventh calendar day of sickness, you will need to self-certify. Your employer may have their own self-certification form. If not, you can download one from HM Revenue and Customs or use form SP2 from your GP surgery. If you are off work sick for seven days or less, your employer should not ask for medical evidence that you have been ill.

Read your employer’s sickness policy so that you are clear about what to do.

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Fit notes

For sickness lasting more than 7 days, your GP will provide a fit note. *A GP can indicate in a fit note whether you are fit for work, or whether you are fit for work if certain changes are made. If your health problem is work-related (for example, stress), it is important for the fit note to say so to allow you and your employer to try and resolve the problem. A fit note must be signed by a doctor. Read more about fit notes on gov.uk

Your employer does not have to accept the advice on the fit note. However, if your employer cannot or does not make the changes described, then you should be considered unfit for work until you are fully recovered or the recommended changes have been made.

If you are unhappy with your employer’s interpretation of the fit note advice, you could return to your GP for follow up advice where a new, more explicit note may be issued.

If your return to work is still unresolved and your employer considers this a breach of the requirements of the sick pay process, contact us for support on 0345 772 6100.

*There is an exception to the general rule. This arises for some categories of employees who are not eligible for SSP who claim Employment and Support Allowance instead.

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Meeting your employer

You may be anxious about attending meetings with your manager to discuss your sickness absence. You might feel they are unnecessary, or unpleasant, and you may mistrust your manager’s motives. Remember, it is only right that you attend meetings where decisions that affect you will be made. Your employer will then be in full possession of the facts of your situation. If you choose not to attend the meeting you will not have the chance to have an input or ask questions.  

Local policy and practice may allow for meetings to be held outside the workplace (such as your home) if that makes it easier for you.

Sickness meetings can involve the employer setting a target for a return to work or limiting the amount of sickness absence that is allowable in future. It can also look at whether there is anything work-related that is contributing to the sickness and whether adjustments can be made.

Arrangements can be made for further medical evidence to be sought from your doctor or occupational health.

Employers normally refer to sickness absence in stages, for example stages 1 – 4. Stage one is for short term sickness and stage 3 or 4 for longer term absence and possibly dismissal. Each stage will probably involve a meeting.

How to prepare for meetings

It is important you read your employer’s sickness policy so you understand your employer’s process. Both you and your employer will need to comply with the policy. 

Contact us for advice on 0345 772 6100 from 8.30am to 8.30pm 7 days a week before you attend any sickness meetings. We would advise you to always have support at stage 2+ meetings.

During the meeting, listen carefully to what your employer says and clarify anything you do not understand. 

Never make a snap decision in a meeting and try not to get upset - ask for a break if you need one.

Before the meeting/s, ask for copies of relevant paperwork (this might include OH reports). If this is not possible, and you are only presented with the information in the meeting itself, ask for a short break to read the papers.

If your employer raises a subject or asks a question that you feel unsure about, ask for time to consider the issues, even if it means adjourning the meeting.   

Ask that proposals are set down in writing and sent to you. You need time to consider and discuss them with your rep and your family.

You are entitled to receive minutes of the meeting. It is well worth taking your own notes during the meeting.

If you believe that you have a disability and your absence is directly attributable to it then it's possible that some or all of your leave could be handled under your employer's Disability Leave policy, if they have one.

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Sick pay

If you are absent from work due to sickness you will probably be entitled to either contractual sick pay - paid by your employer as part of your contract - or statutory sick pay (SSP) - paid by your employer but claimed back from the government.

Statutory Sick Pay (SSP)

You are not entitled to SSP for the first three working days of your sick leave, but may receive it from the fourth day onwards until you return to work. You may also be eligible for other state benefits such as help with paying council tax or employment and support allowance (paid directly to you from the government).

Find out more about your eligibility for SSP, and how to claim, at gov.uk

Contractual sick pay

If you work under an NHS AfC contract, your entitlements to sick pay are given in section 14 of Agenda for Change. As well as receiving sick pay, you may be entitled to claim NHS injury benefit or allowance if you believe your injury or illness to be work related. Keep your own record of the dates of your sickness and check your entitlement to sick pay against these dates.

Read more about NHS injury benefit or allowance

Agency workers' rights to sick pay

After 12 weeks in the same job, the Agency Workers Regulations 2010 entitle agency workers to the same basic conditions of employment as permanent employees (such as pay). However, the regulations do not include rights to contractual sick pay. As an agency worker, you may be entitled to Statutory Sick Pay (SSP) if you satisfy the eligibility criteria.

Find out more about SSP, and how to claim, at gov.uk

Read more about agency worker rights at ACAS. 

You should also check your agency terms and conditions.

Financial problems

We can provide benefit checks, debt advice and counselling. Please call us if you need support on 0345 772 6100.

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Sickness during pregnancy

If you are unwell during your pregnancy, you should follow your employer’s normal sickness reporting procedures.

Your employer must record any pregnancy-related sickness absence separately from other sick leave. Pregnancy-related sickness absence must not be used as a reason for disciplinary action, dismissal or redundancy.

You have the same rights to paid sick leave as any other employee. 

If you are off sick with a pregnancy-related illness in the last four weeks before your expected week of childbirth, your employer can ask you to start your maternity leave.


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Sickness during the menopause

For some, going through the menopause can be uneventful but for many it can be a very difficult experience. The menopause is very individual but common symptoms can include;

  • poor concentration
  • hot flushes
  • tiredness
  • poor memory/memory loss
  • night sweats
  • insomnia
  • exhaustion
  • anxiety and depression because of sudden changes in hormone levels and emotional outbursts.

Lack of concentration and forgetfulness can lead to poor work performance, difficulties in making decisions and decreased confidence. This can be a vicious circle that is difficult to break without the right support.

If there are performance issues at work or if you go on sick leave due to menopausal symptoms, the employer has clear duties under the Equality Act 2010 not to discriminate against you. Employers can risk facing claims for sex, disability & age discrimination if they fail to properly support their female employees during this difficult time.

Call us on 0345 7726100 if you feel you are not having the right support or if you feel discriminated against.

Employers should;

  • raise awareness of the issue
  • take medical information into account in capability situations where menopausal ill-health is raised by the employee
  • ensure that any menopausal related sickness absence is counted as an ongoing health issue instead of a series of short-term absences
  • be accommodating to the flexible working requests that will help manage symptoms
  • assess the physical working environment (e.g. options of fans)
  • ensure that rest break and toilet facilities are readily available, along with access to cold drinking water
  • seek support of occupational health where necessary.

There are a number of practical steps an employer can take to support staff in alleviating the symptoms of the menopause. The RCN guide The menopause and work: guidance for RCN representatives has a helpful table with examples of common symptoms, the relationship with work and suggested adjustments.

It is important to call us on 0345 7726100 if the employer is not being supportive in this area as it could be a discrimination issue.

Further information

The British menopause society.
The menopause and work: guidance for RCN representatives
Capability and performance.
The RCN has a peer support service for those experiencing the menopause. This group puts members in touch with each other by email.

 

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Sickness when you have two jobs

It is possible for an employee who has two contracts with the same or different employers to be incapable of work under one contract but capable of working under the other. 

If you have more than one contract with the same employer (or with different employers trading in association), and your earnings are aggregated for NI contributions purposes, you must be incapable of work under all contracts before you can be entitled to SSP. 

We advise that you only work for one employer while off sick from the other if both employers agree. It may be a disciplinary breach to be working for one employer without the other employer's permission. Read your employers' sickness policies to be sure of your position.    

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Sickness meetings - the stages

Sickness stage 1 meeting

If you are off sick for a long period (for example, more than a week) or if you have had repeated periods of sickness, you will probably trigger the sickness policy and a stage 1 meeting may be called. Try not to be too worried about this meeting. You can use the opportunity to discuss any problems.

Although your employer may allow you to be represented by an RCN rep or colleague, there is no legal right to representation at this stage. In fact, if it is just a stage 1 meeting with no ongoing issues, you may just wish to take a colleague and take notes. If you are unsure, if the sickness is work related or if you just feel that you need support, call us for advice on 0345 772 6100.

Sickness stage 2 meeting

You may trigger stage 2 of the policy if you are off work for a longer period or if you have repeated periods of sickness while on stage 1. Call us for advice if you reach this stage on  0345 772 6100.

Your employer may involve your Human Resources and Occupational Health departments (where they exist). Some employers may refer you to the national Fit for Work service for a voluntary occupational health assessment.

Trigger points and absence targets

Employers can use a trigger points system to determine what they consider to be “problematic absence”. This can be one long period of sickness or a number of shorter term absences. Whilst this can be useful in ensuring a consistent approach across an organisation, it can be difficult for certain staff - especially those working in frontline clinical roles where exposure to injury and illness is higher.

If you work in such a role and are told by your employer that any further absence may lead to disciplinary action, this may be unreasonable. You should remind them of your NMC Code and how it requires you to ensure your own health and fitness so as not to compromise patient safety.

Sickness stage 3/4 meetings

If you are off sick for a long period or again if there is repeated sickness, a stage 3/4 may be called. It is very important that you do not go alone to these meetings. Call us for further advice on 0345 772 6100.  At this stage the employer has to consider all options available to them. These can include redeployment options but also potentially dismissal and/or ill health retirement.

At all stages, read and follow your employer’s sickness policy.

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Occupational health/Fit for Work/Access to work

Occupational health referrals

Occupational Health (OH) may become involved in sickness absence management at the request of your manager to look at ways you can be supported at work. This is usually a formal process, aimed at identifying what support may be necessary to help manage your sickness absence levels. OH services will assess your condition in conjunction with your working environment. They may seek reports and further information from your GP, consultant or other health care professional, and will ask for your written permission to do this. OH will then make recommendations to your manager as to how the sickness should be handled. This may involve reasonable adjustments or redeployment.

OH is not there to force, or put undue pressure on you to return to work before you are well enough to do so. They are there to provide advice about your fitness for work, your manager should consider this advice in conjunction with GP fit notes.

You may be able to self-refer to your employer’s OH service to explore what support might be available to you. Some OH services may be able to offer fast track services such as physiotherapy or counselling dependent on your needs. Check your employer’s sickness absence policy for more detail on when OH may be consulted or how you can access services yourself.

Refusal to consent to an occupational health medical report

If you refuse to provide medical evidence, or undergo an independent medical examination, you may be told in writing that a decision will be taken on the basis of the information available and whether this could result in dismissal. If you are considering refusal, please always seek further advice from us.

Fit for work: England, Wales and Scotland

The Fit for Work scheme complements rather than replaces, existing occupational health services provided by employers. It especially benefits those employers who currently have limited or no in-house occupational health services.

GPs and employers can refer a patient or employee by using:

  • England and Wales – Fit for Work
  • Scotland – Fit for Work Scotland

The Fit for Work referral service can be used by anyone requiring work-related health advice, including employees, employers and GPs. They can be contacted on 0800 032 6235 or online at www.fitforwork.org.

Access to Work

Access to Work is a government initiative that can potentially fund adjustments if you have a physical or mental health condition.  It involves a workplace assessment and reimbursement for agreed equipment/alterations to your employer. Read more about Access to Work here.

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Employer access to your medical records

Sometimes your employer may seek further medical information. However, under the Access to Medical Reports Act 1988:

  • additional information cannot be accessed without your knowledge and consent
  • you have the right to decline to give consent for a report to be written
  • you have the right to see the report before it is supplied and to ask for any part that you think is incorrect to be amended.

As an employee, you also have various statutory rights under the Medical Reports Act 1988 and current data protection legislation.

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Employer contact with you

If you are likely to be on long term sick leave, your employer is expected to maintain contact with you on a regular basis. If it is not mentioned in your local policy, then there are no specific rules about this. Your employer should use tact and common sense.

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Employer refuses your return to work

If your employer refuses to let you return to work even though your GP has signed you as fit, and your employer fails to pay you your normal working pay, then this could amount to an unlawful deduction of salary. However this would depend on your contract and the provisions contained therein. Check your contract and contact us for advice.

If you are refused permission to return to work on the basis of a health and safety issue then this would be 'medical suspension'. Local policy should determine how this is managed. If you are medically suspended, then we would argue that this should be on full pay.

Please see the section on 'Fit notes' if your employer is unable or refuses to make adjustments as outlined on a fit note, or by occupational health.

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Sickness and annual leave

Longer-term sickness and accrual of annual leave

The European Court of Justice (ECJ) ruled that an employee should be able to accrue their statutory annual leave if they were unable to take those holidays due to ill health.

Statutory leave is different to contractual leave. Everyone is entitled to a certain amount of statutory leave but a contract of employment normally exceeds this minimum amount. For details on statutory annual leave see gov.uk or www.nidirect.gov.uk.

The Healy case confirmed that the amount of leave that can be carried forward is limited to 20 days (for a full time worker) rather than 28 days. This is covered by section 13 of the Working time regulations.

For example:

Mary is a nurse who on average works 5 days a week. She is entitled to 28 days statutory leave a year. She has been with the NHS for over 5 years so contractually she is entitled to 29 days annual leave plus 8 public holidays. 

From January 2015-April 2015 Mary took 5 days annual leave.

From May 2015-December 2015 Mary was off sick. She returned in January 2016.

Mary is entitled to carry over 20 days of annual leave.

If your employer refuses to either pay or carry over your statutory annual leave because of sickness, this may be unlawful. You should call us for support. If your contract is terminated and you have been unable to take your holidays due to ill health you have a right to be paid for your statutory annual leave.

Sickness while on annual leave

Most employers will allow staff to claim back their annual leave if they are sick while on holiday. To clarify your position, check your contract and local policies.

If you become unwell while on holiday, take the following steps:

  • obtain a sick note from a medical practitioner (in English if possible)
  • follow your employer's policy and information your employer as soon as you can (i.e. while you are on holiday, rather than when you return)
  • on your return to the UK, visit your GP immediately for an updated certificate.

If your employer refuses to reimburse your annual leave or refuses to accept your overseas sick note, please call us for support as this could be an underpayment of wages issue.

Taking annual leave while on sick leave

Whether you can go on holiday while on sick leave will depend on various things, including:

  • the reason for the sickness
  • whether the GP has recommended the trip for recuperation or convalescence
  • whether the holiday had been pre-booked and paid for
  • whether it would be deemed reasonable under all of the circumstances.

It would be reasonable to secure the agreement of your employer before going on an overseas holiday. Failure to reach any agreement and deciding to take a holiday could possibly lead to disciplinary action and/or deduction of sick pay.

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Long term sickness

If you are off work sick for more than 4 weeks this is likely to be considered as long term sickness absence. Both you and your employer should continue to follow the sickness absence policy.

Your options include the following:

  • If you are fit to return in the near future, this should be closely monitored and arrangements to return to work should be made. OH should be involved. In the case of disability, reasonable adjustments should be made to support return to work.
  • If you are fit to return to work, but not to your current role, alternative employment should be considered. Retraining or an induction should also be arranged.
  • Unfortunately if there are no suitable alternative roles available and medical opinion confirms that you are unable to return to work, then your employer may be entitled to terminate your employment on the grounds of incapacity due to ill health.

If you are on long term sick leave it is important that you call us for local support. Some employees feel pressured to resign but you should not resign without first taking advice. Resigning may remove your entitlement to notice pay and compromise ill health retirement benefits.

Read more about Ill health retirement guide.

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Redeployment

When considering redeployment, some policies may state that this will happen after a prescribed length of sickness absence, others will ask for medical advice about the best time to consider long term options.

Your employer is not under any legal obligation to create a new job for you, but should assist you in identifying already vacant posts in the organisation that may be appropriate now or once reasonable adjustments have been made (this may include some degree of retraining). Many people feel frustrated and let down by the lack of actual support they receive from their employer e.g. the employer only sends notice of a vacancy but offers no further support or the employee has to compete with other candidates.

You are not obliged to take a redeployed position but must consider carefully the implications of turning an opportunity down. You may find it easier to think of redeployment as stepping stone rather than a “career defining moment”. Many report that it is easier to move to a more preferable job once they are back at work than to hold out for a better offer, run out of time and risk dismissal.

Most employers will set time limits for the consideration of redeployment – usually 1-3 months. They are not obliged to keep you on contract until a suitable vacancy occurs, as, even if you are not receiving any sick pay there are costs and implications for an employer to keep you “on the books”.

When discussing alternative employment, prepare yourself before the meeting. Consider if it is realistic for you to return to your original job. If not, think carefully about your experience and expertise and how else they may be used. Be ready to “make a case” for yourself, i.e. what you can do, what you can offer. Sell yourself. Try to be positive. There are many opportunities in nursing; many of them are ideal for people with injuries and/or disabilities.

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Absence through drug or alcohol abuse

In instances of suspected drug or alcohol abuse, you may be referred for special treatment and professional counselling.

If your employer has a policy on drug and alcohol abuse, it may state that you are expected to comply with treatment and counselling offered, and that if treatment and counselling does not resolve the issue, you may be disciplined. If you are asked to attend a disciplinary hearing as a result of your drug or alcohol abuse, contact us on 0345 772 6100 from 8.30am to 8.30pm 7 days a week.

Read more about disciplinary hearings.

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Attending job interviews while on sick leave

It is advisable for you to book annual leave to attend a job interview. If this is not possible then discuss the matter with your GP, and then your employer. You are signed off as unfit for work so your employer could potentially take action against you if you attend an interview while signed off sick. 

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Dismissal

Dismissal is sometimes a possibility for those on long-term sick leave or for those who may have frequent periods of sickness absence. Your employer should follow a fair procedure before deciding to dismiss and some employees who are dismissed because of ill health have the right to rely on the unfair dismissal provisions of the Employment Rights Act 1996.

If you have been in regular contact with your employer and there seems little chance of you being able to return to the role that you were employed to do, or any other suitable role, then your employer may be justified in terminating your contract. In some very limited cases of serious illness causing long-term sickness absence, your employer may argue that the contract has been frustrated, which means that it has come to an end without the need for a dismissal and by operation of law instead.

It is important that you have our support at an early stage if you think that your absence could be long term. Please call us for advice on 0345 772 6100 from 8.30am to 8.30pm 7 days a week.

Before dismissing an employee due to ill health, employers should follow certain principles.

  • They are expected to follow a fair procedure before deciding to dismiss.
  • They must take appropriate and sensible steps to inform themselves of your true medical position.
  • They should consider the opinion of an independent medical adviser if you ask them to.
  • When deciding that you cannot continue in your original job because of ill health, your employer must go on to consider suitable alternative work which may be of a different band/grade (not necessarily lower).
  • Consideration must be given to the provisions of equality legislation, such as the Equality Act 2010, when deciding whether or not to dismiss. In general, the legislation will not affect the dismissal of an employee who is incapable of carrying out his or her job and has been absent for a long time. However, if it was reasonable for the employer to make an adjustment and they do not do so (for example, to a disabled employee’s working hours or duties so as to enable him or her to return to work) then a dismissal may be unfair and discriminatory.
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Dismissal and notice

An employee whose contract is terminated while on long-term sick leave and who has exhausted all entitlement to sick pay will be entitled to full pay for the statutory minimum notice period. This is unless his or her contractual notice exceeds the statutory minimum notice by at least one week.

Section 86 of the Employment Rights Act 1996 sets out the statutory minimum notice periods. These are one week where the employee has at least a month’s but less than two years’ continuous service, and one week for each year of continuous service, up to a maximum of 12 weeks, where the employee has at least two years’ service.

As an example, where the contractual notice period is one month, but the employee being dismissed while on long-term sick leave has over seven years’ service, his or her statutory notice entitlement will be seven weeks, so this will be payable at the full rate. (1 x 7=7)

However, where the contractual notice period is one month and the employee has three and a half years’ service, his or her statutory notice entitlement will be three weeks. (1 x 3 =3)

The contractual notice period exceeds the statutory notice by at least one week, and there will be no statutory obligation for it to be paid at the full rate.

Employers sometimes treat an employee applying for ill health retirement as either an act of resignation (in which case no notice is payable if sick pay has run out) or class it as a termination of contract by mutual consent.

Certain state benefits paid to you as a direct result of an accident can be reclaimed by the DWP if you later recover damages as a result of a personal injury claim. Some employment contracts may contain clauses requiring employees to recover any contractual sick pay paid as a result of an accident, as part of a personal injury claim. It is sensible to check your contract of employment carefully or to discuss the position with your employer before your claim is settled.

Read our guide on accidents at work and personal injury.

If you are concerned about or are facing dismissal due to ill health, please call us on 0345 772 6100 from 8.30am to 8.30pm 7 days a week.

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Peer support

Being off sick can be a lonely experience. Our Peer Support group brings together members affected by physical or psychological injury, ill health or disability, whether work-related or not. Please see Reasonable adjustments: the peer support service guide for members affected by disability in the workplace and find out more here.

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Call the RCN on: 03457726100