Can staff work while signed off sick?

In a world where you can operate a business from almost anywhere, the line between work and rest has blurred.

Now, you can open your laptop and, within minutes, feel like you’re in a busy office. Likewise, if you check your work phone after hours, it can quickly feel like you’re back at your desk.

It’s perhaps no surprise, then, that when you’re sick, there’s a powerful temptation to log on, switch your brain into gear, and get working. This temptation is likely greater if you work from home and your office is just a few steps away.

But if a medical professional has signed you off sick and you start working, could that be an issue for you or your workplace?

Furthermore, if you’re the boss and you ask someone to work while ill, does it create legal issues for you and your company?

What’s the legal situation around working whilst signed off sick?

It’s probably best to start with the basics: if you want to avoid working while sick, there’s great news. Statutory safeguards are in place to protect you while you take time to recuperate.

If you’re the employer, you have a statutory duty to ensure the well-being of your employees, so you’re on thin ice if you ask someone to return to work early.

In short, employees are well within their rights to take time off if they have health problems. The only caveat is that if they are off for more than 7 consecutive sick days, they will need to provide you with proof.

This “sick” or “fit” note is evidence of advice from a healthcare professional.

It can say someone is ready to go back to work, “may be” fit to work or are not fit to work. This note is evidence of advice from a healthcare professional. That healthcare professional can be a doctor, occupational therapist, nurse, physiotherapist, or pharmacist.

If the note says “may be” fit to work, then you, as the employer, should learn how to help your staff member get back into action. This can include a phased return, different hours, duties, or workplace adaptations.

Ultimately, the employee can choose to return before the period suggested in the fit note. But let’s look at that a little more.

The big takeaway about working whilst sick

The most important thing to remember is that staff are in charge of their destiny. They are protected if they feel too unwell to come back, and they can return to work before a note expires if they want to.

But why might they want to do this?

Reasons people want to work whilst signed off sick

People might want to bring their sickness absence to an end – even if they have been signed off for long-term health issues – because of several reasons:

Financial fears – if sick pay is not great at your business, they might come back early to protect their income. If they are commission-driven, this supplemental income might be important in addressing cost-of-living issues.

Fear of judgement – people often come into work when ill if they worry your management team will judge them for being sick.

Pressure to perform – if your business is about productivity targets, this will discourage people from taking sick leave. A lack of staff to cover an illness might also create a similar pressure, as would a “big project” where people feel they play a pivotal role.

Job security – some spells of absence, when signed off, are long. Some people fear there will be no job to come back to. This shouldn’t be a problem because employers should have an exceptionally good reason to dismiss someone who is on long-term sick leave. If they don’t, it’s discrimination.

They feel better – nobody writing a sick note knows exactly when the person in question will recover. If an employee is back on form, they will want to come back, and no doubt the employer will want them back, too.

It helps them get better – the NHS says some people feel better by returning to work early whilst being signed off.

Are there any issues if sick people work whilst being signed off sick?

Yes.

Especially if you, as the employer, ask them to work when they’re not ready.

Issue number one is that you might make someone feel worse – opening the door for a damages claim. As DavidsonMorris argues, this doesn’t have to be a physical injury; it can be someone returning before recovering from work-related stress. If the person in question gets ill, any subsequent dismissal might be prone to a disability discrimination lawsuit.

Second, if they’re too ill to come back and feel pressured, Neathouse Partners say this is the recipe for a constructive dismissal claim.

Being a responsible employer

To recap, the risks around people working while ill are myriad and expensive: you can make an employee sicker, face lawsuits if you make them unwell, or you can risk a discrimination lawsuit if they feel coerced into coming back to work and something terrible happens.

So, how do you responsibly handle someone returning to work before their sick note expires?

The best thing to do is communicate – listen and talk. When someone calls in sick, ensure whoever does HR duties becomes a friendly communication link between the workplace and the employee. With less exposure to their (potentially stressed) line manager, this makes the employee less likely to feel any pressure.

Throughout the process, be compassionate and methodical and give the employee space to recover. Balance care with intrusiveness and keep the pressure off as much as possible. If someone has a mental health condition like stress, then be extra-conscious of this.

An employee ‘return to work’ process is an excellent way to improve your staff care. This is a meeting held between HR and the person coming back from sick leave. It can provide a forum where people can share any details about their condition they might not have properly communicated so far. It can also give you a proper, case-managed way of checking in with staff to ensure they’re ready to work again.