Can employees work while on sick leave?

You might be the best employer in the world, but you can’t perform miracles – people are bound to get sick from time to time. In fact, on average we take just over four sick days a year each.

Sick leave (especially when taken by people you rely on) can be tricky to handle, and a part of the challenge is in knowing what to do if someone continues to work while signed off sick. The simple answer is that, legally, there’s nothing stopping them.

But the law is only one small part of the story, there are a lot of things to consider, including your team’s wellbeing and your liability as their employer. Here’s everything you need to know about employees working while on sick leave.

Types of sick leave

Sick leave comes in two forms – one short term and one long term – and the type of leave someone is taking will play a big part in how you respond.

If a team member is only going to be off for a couple of days with a cold, then it’s probably not an issue for you operationally. Extend that sick period to several weeks, though, and it might start to cause headaches without a proper handover.

Employee self-certification

All UK employees can take short term self-certification sick leave for up to seven days in a row (including weekends). They don’t have to provide any evidence of their illness or injury, or even visit a doctor.

The self-certification element comes in when they return to work and you can ask for details of their sick leave. How you do this will depend on your sickness absence policy, but it’s usually through a self-certification form or an email.

Signed off sick

If someone is off sick long term, for more than seven consecutive days, they have to provide proof of their illness with a fit note (usually called a sick note) from their doctor.

A fit note will either say they’re ‘not fit for work’ or they ‘may be fit for work’. If it says the latter, there might be changes you can make to their job to allow them to return sooner rather than later.

People who are signed off sick for longer than four weeks are considered ‘long-term sick’, but there’s no real difference between this type of absence and a signed off sick period of less than four weeks.

What to do when an employee is off sick

There aren’t any laws around someone working through their illness while they’re signed off. What it really comes down to is how you want to treat the situation as their employer.

It makes sense that someone signed off sick because they can’t make it into the workplace isn’t in any condition to be working at all. But that doesn’t mean you can’t ask them for a handover or update so their work can be picked up by someone else. After all, if they’re just off with a cold, they’re not going to mind being contacted to answer a few simple questions.

In terms of contacting them regularly for updates, you have more decisions to make. On the one hand, keeping in touch with someone on sick leave can be a good thing – making them feel valued. On the other, if they see your contact as pressure, it’s only going to make things worse by causing stress, guilt, or frustration.

When you’re deciding what to do about contacting an employee who’s off sick, use your common-sense. You’ll know how serious their illness is, that should tell you everything you need to know about whether they have it in them to think about work.

What to do if an employee works while signed off sick

If you know someone is working through an illness, even when signed off by a doctor, the situation is harder.

Continuing to work while sick might make their condition worse and prolong their recovery. This is bad news for you, it risks breaching your duty of care to them as an employer.

There’s also the ethical question of whether it’s right or wrong to allow people to put work ahead of their health in the first place, there’s no concrete answer to this one.

In most cases, the best thing you can do is make it crystal clear they shouldn’t be working while signed off sick. You can tell them over the phone or in an email as and when they get sick but, as usual, prevention is the best cure.

Creating an effective absence policy that covers your stance on working (or, rather, not working) through illnesses can stop the issue from ever coming up in the first place.

Can employees return to work before their sick note ends?

If a member of your team has been signed off work by a doctor but they recover before the end date on their fit note and feel ready to come back to work, they’re allowed to.

They won’t need to get a new doctor’s note confirming they’re fit for work – it’s up to them to decide whether they’re fit or not. But accommodating their return to work with adapted working hours or responsibilities will make things easier for them and is sure to be appreciated.

Can you dismiss someone on sick leave?

The simple answer to this question is yes, you can dismiss employees on sick leave. The caveat is you still have to go through the exact same procedure you would if they weren’t off sick. That means there has to be a valid and justified reason and a proper disciplinary procedure.

You can’t fire someone who’s on sick leave just because they’re ill, but if they’re off sick after committing a dismissible offense, it’s perfectly legal to begin the dismissal process.

Can employees work while off sick with COVID-19?

Finally, a topical question currently circulating is what the rules are around working while off sick with COVID-19. The same rules apply here as with any other illness – it’s not illegal but it’s also probably not a good idea.

Working while furloughed, however, goes against the legal conditions of the government’s furlough scheme.