Signed Off, Not Shut Out: A Guide to Sick Leave, Capability and the Law in Britain

Few people plan for a period of serious illness. When one arrives, employment questions rarely wait until recovery. Can your employer keep paying you? Can they ask about your diagnosis? Can they eventually replace you? The answers depend on a framework that blends contract, statute and — where a health condition becomes long-term — disability law.

What You Are Paid While Off Sick

Most employees are entitled to Statutory Sick Pay (SSP) from the fourth consecutive day of absence, currently a flat weekly rate set by the government, for up to 28 weeks. It is not generous, and it is not the whole picture. Many employment contracts provide occupational sick pay — often scaled to length of service — which sits on top of, or in place of, SSP. The starting point is always your contract and any staff handbook.

Employers can require reasonable evidence of illness, typically a self-certification for the first week and a fit note from a GP thereafter. What they cannot do is use the evidence-gathering process as a means of pressure. Requests for detailed medical information should be proportionate, and a occupational health referral is the proper route where an employer genuinely needs to understand prognosis or workplace adjustments.

When Absence Becomes a Disability Question

The Equality Act 2010 protects people with a physical or mental impairment that has a substantial and long-term effect on their ability to carry out day-to-day activities. Conditions such as cancer, multiple sclerosis and HIV are deemed disabilities from diagnosis. Once an employee falls within the definition, the employer is under a positive duty to make reasonable adjustments — altered duties, phased returns, modified hours, equipment, or extra time off for treatment.

This is where many employers stumble. A rigid attendance policy that counts disability-related absence alongside ordinary absence, leading to a warning or dismissal, is a well-trodden path to tribunal. Case law is clear that treating someone unfavourably because of something arising in consequence of their disability — the absence itself, for instance — is unlawful unless the employer can justify it objectively.

Capability Procedures: Fair Process, Not a Formula

An employer may lawfully dismiss for capability, but the process must be fair. That ordinarily means:

• up-to-date medical advice, ideally from occupational health rather than a manager's impression;
• genuine consultation with the employee about the condition and possible adjustments;
• consideration of redeployment to a suitable alternative role; and
• warnings that reflect the reality of the medical picture, not simply a points threshold.

A tribunal will ask whether the decision to dismiss fell within the band of reasonable responses available to a reasonable employer. Skipping the medical evidence, or making the decision before the consultation has concluded, tends to push a dismissal outside that band.

The Red Line: Pressure to Resign

A pattern our employment disputes work regularly uncovers is the employer who, during treatment for a serious illness, suggests that resignation would be 'easier for everyone'. Constructive dismissal law exists precisely for this. Where an employer's conduct is calculated to destroy the relationship of trust and confidence, an employee may resign and claim as though they were dismissed.

Employees should resist being hurried. Keep written records of meetings, ask for proposals in writing, and take advice before signing anything described as a settlement agreement — which, by law, requires independent legal advice to be valid anyway. A negotiated exit on fair terms is sometimes the right outcome; an under-settled one agreed under pressure rarely is.

Practical Points for Small Employers

Small businesses without an HR function face the same legal duties as large corporates. Three habits reduce risk considerably: engage occupational health early rather than relying on GP fit notes alone; document adjustment discussions, even if no adjustment is ultimately made; and seek advice before, not after, issuing a capability warning to an employee with a long-term condition. The cost of a short consultation with a solicitor is modest against the exposure of an unsuccessful defence at tribunal, where awards for disability discrimination are uncapped.

Where We Come In

Whether you are an employee whose sick leave has turned into a disciplinary process, or an employer trying to manage long-term absence lawfully and humanely, early advice clarifies the ground. Bentley Law advises on statutory entitlements, disability discrimination claims, settlement agreements and tribunal proceedings. A short consultation is often enough to identify whether you have a problem — and, more usefully, how to avoid one.