OH law expert Professor Diana Kloss explains changes to the rules on who is eligible to sign a fit note, and summarises the case law concerning evidence of incapacity to work, including when an employer suspects an employee is not genuinely ill.

Although, originally, workers were only entitled to be paid wages if they were ready, able and willing to work, most are now entitled to at least basic pay if they are unable to work due to ill health. Sick pay is of two kinds: Statutory Sick Pay (SSP) under the Social Security Contributions and Benefits Act 1992, and contractual sick pay under the contract of employment. An employer is obliged to pay SSP to those who qualify under the Statutory Sick Pay (General) Regulations 1982 (as amended) for up to 28 weeks, and additional sick pay as provided in the contract of employment. Many low-paid workers only receive SSP…

Diana Kloss is a barrister, former part-time employment judge, Acas arbitrator and author.