What Can Employees and Employers Do When Off Sick in the UK - Your Legal Rights Explained

Sickness absence is a normal part of working life, but when it happens, both employees and employers often have questions about what the law requires and allows.

If you’re an employer, you might wonder how long you need to pay sick pay, what medical evidence you can request, or how to handle long-term absence. If you’re an employee, you may want to know about your rights to pay, job protection, and what happens if you’re unable to return for a while.

This guide explains the key legal rights and responsibilities around sick leave in the UK and offers practical advice for small business owners to stay compliant and support their staff fairly.

Understanding Sick Leave in the UK

When an employee is unwell and unable to work, they are considered off sick. Absence can be short-term (a few days) or long-term (several weeks or months).

UK employment law doesn’t limit how much sick leave someone can take, but it does set out clear rules for how pay, certification, and job protection are handled.

Both employers and employees have duties:

• Employers must pay the correct sick pay, handle personal information lawfully, and treat employees fairly.
  
• Employees must report illness promptly and provide evidence where required.
  

Statutory Sick Pay (SSP) and Company Sick Pay

Employees who meet certain criteria are entitled to Statutory Sick Pay (SSP) under the Social Security Contributions and Benefits Act 1992 and the Statutory Sick Pay (General) Regulations 1982.

As of April 2025, SSP is £116.75 per week for up to 28 weeks. It becomes payable after an employee has been off sick for four consecutive qualifying days (the first three are unpaid).

To qualify for SSP, an employee must:

• Earn at least £123 per week (before tax)
  
• Be an employee under PAYE (including some agency workers and directors)
  
• Notify their employer about their illness within the employer’s required timeframe
  

SSP is paid by the employer through payroll, like normal wages. Employers cannot reclaim SSP from HMRC, as the old rebate scheme has ended.

If your business offers company sick pay, that policy must be clearly set out in the employment contract or staff handbook. It can provide more generous benefits than SSP but must not offer less.

Fit Notes and Medical Evidence

If an employee is off sick for 7 calendar days or fewer, they can self-certify their illness. This means they don’t need a medical note and can instead confirm their absence via a self-certification form, email, or HR system.

After 7 calendar days, a fit note (previously called a sick note) is required from a medical professional.

Since 2022, fit notes can be issued by:

• GPs
  
• Hospital doctors
  
• Nurses, occupational therapists, physiotherapists, or pharmacists
  

A fit note will either state the employee is:

• Unfit for work, or
  
• Fit for work with adjustments (for example, reduced hours, amended duties, or remote work)
  

Employers should treat fit notes as confidential medical information and store them securely in accordance with UK GDPR and the Data Protection Act 2018. Because health data is “special category data” under Article 9 UK GDPR, only authorised staff should access it.

Employer Responsibilities When Staff Are Off Sick

Employers have several legal obligations under the Employment Rights Act 1996, Health and Safety at Work Act 1974, and Data Protection Act 2018. These include:

• Paying SSP (or company sick pay) correctly and on time
  
• Keeping accurate absence and payroll records
  
• Maintaining the confidentiality of health information
  
• Providing a safe environment for returning employees
  
• Following a fair and reasonable process if long-term absence affects performance or capability

Employers should hold return-to-work meetings after any sickness absence. These conversations help confirm recovery, identify any ongoing issues, and ensure support is in place for the employee’s return.

Employee Responsibilities During Sickness Absence

Employees also have duties when off sick. They must:

• Notify their employer as soon as possible and explain the nature of their illness
  
• Provide a fit note or medical certificate if required
  
• Stay in touch during long absences and cooperate with reasonable requests
  
• Engage with occupational health referrals or reasonable adjustments where appropriate
  

Failure to follow sickness reporting procedures may affect entitlement to SSP or lead to disciplinary action.

Managing Long-Term or Repeated Absence

For small businesses, long-term sickness (typically four weeks or more) can be difficult to manage. However, employers must act fairly and within the law.

A good approach includes:

1. Keeping in regular contact with the employee.
   
2. Requesting updated medical evidence or an Occupational Health assessment.
   
3. Exploring reasonable adjustments, such as flexible hours, different duties, or home working.
   
4. Documenting all discussions and decisions carefully.
   
5. Following a fair capability process before considering dismissal.
   

Under section 98(4) of the Employment Rights Act 1996, a dismissal for long-term sickness can only be lawful if the employer has obtained proper medical evidence, explored reasonable alternatives, and acted reasonably in all circumstances.

If the illness qualifies as a disability under the Equality Act 2010, the employer must make reasonable adjustments to help the employee stay in work. Failing to make adjustments can amount to unlawful discrimination under section 21 of the Equality Act 2010.

Returning to Work Safely

When an employee is ready to return, a phased or adjusted return may help them reintegrate smoothly.

Fit notes may suggest modifications like part-time hours or lighter duties. Employers should consider these recommendations seriously and discuss them in a return-to-work meeting.

The goal is to support recovery and reduce the risk of relapse, not to penalise the employee for being unwell.

Disability, Reasonable Adjustments and Discrimination

An employee’s illness may qualify as a disability if it:

• Lasts, or is expected to last, 12 months or more, and
  
• Has a substantial and long-term impact on day-to-day activities
  

Employers must take reasonable steps to remove or reduce barriers to work. This could include adjusting hours, providing specialist equipment, reassigning tasks, or offering remote work where practical.

Discriminating against an employee because of illness, disability, or absence related to a disability is unlawful.

Other Legal Considerations

• Annual leave during sickness: Employees continue to accrue holiday while off sick. If they fall ill during pre-booked leave, they may reschedule that holiday.
  
• Medical reports: Employers can request a medical report from the employee’s doctor under the Access to Medical Reports Act 1988, but only with the employee’s written consent.
  
• Record keeping: Absence records should be retained for at least three years after the end of the tax year for HMRC and compliance purposes.
  

Policies Every Small Business Should Have

Small businesses don’t necessarily need complex HR systems, but they do need clarity. Having clear, concise documents helps everyone understand the process:

• Sickness and Absence Policy - explains how to report illness, provide evidence, and return to work.
  
• Staff Handbook - sets out pay entitlements, reporting lines, and attendance expectations.
  
• Return-to-Work Form - records discussions after each absence.
  
• Privacy and Data Policy - ensures personal and medical data is kept secure.
  
• Capability or Performance Policy - provides structure for managing long-term or repeated absence fairly.
  

These policies should be reviewed annually and shared with all employees.

When to Seek Legal or HR Advice

You should seek professional advice if:

• An employee has been off sick long-term and you’re unsure how to proceed
  
• You’re considering dismissal due to medical incapacity
  
• There’s a potential disability or discrimination issue
  
• You need help creating or reviewing sickness absence policies
  

Early advice can help you avoid costly mistakes and ensure your business stays compliant with employment law.

Key Takeaways

• Employees who qualify are entitled to Statutory Sick Pay for up to 28 weeks.
  
• After 7 days, a fit note from a medical professional is required.
  
• Employers must handle absences fairly, confidentially, and without discrimination.
  
• Long-term illness may count as a disability, requiring reasonable adjustments.
  
• Clear policies protect both employees and employers.
  
• Communication and documentation are key throughout the process.
  
• Proper management of sickness absence prevents disputes and builds trust in the workplace.
  

Need Help?

If you’d like help drafting or reviewing your sickness and absence policies, or you need advice on managing long-term illness or employee capability issues, Sprintlaw’s team can help. You can reach us at 08081347754 or team@sprintlaw.co.uk for a free, no-obligations chat.