Resigning whilst on sick leave

[Waitingandwaitingg]

I've been signed off for a month with work related stress, which i will try and get extended.

I am contractually entitled to 12 weeks sick pay in any 12 month period at my normal salary.

My notice period is three months.

I'm desperately trying to find another job as I cannot go back into that toxic environment.

Two questions:

When should I resign? I'm really hoping to get another role in the next few weeks!! And will i be entitled to my full sick pay i.e. full basic salary.

I'm terrified about my manager (Head of HR no less!) Putting my sick leave on my reference. They almost put sick leave on another team members reference when they left, it was only when I said oh god don't do that etc etc that they decided not to. How on earth do I stop this?

Its worth saying the head of hr is there by tenure and has extremely little knowledge in hr and employment law etc.

Im being bullied by another member of the hr team. It's really toxic. In my 12 plus years in hr I've never experienced anything like this. I'm a mess. I just want to leave.

Any employment law experts please !

They can put number of days absence (including sick leave) on a reference unless it’s related to a disability. Sorry. You’ll get 12 weeks’ sick pay (if you continue to get doctor’s notes) but you won’t get your full notice period if you’re off sick when you resign, just the remaining sick pay. I would imagine that if you came back off sick leave and then handed in your notice, you’d get the full three months but they would probably require you to work your notice period.

Not a lawyer, but here's my understanding: They can put your time on sick leave on your reference if they choose. References can be challenged when they have a negative effect but can't be substantiated - and it will be a verifiable fact that you took [X] amount of sick leave - so if you're worried about how that looks, resigning sooner is better. You will have to weigh that up against how long you can manage without a job financially, how likely you think you are to have another offer soon, etc.

Some people will well-meaningly tell you that "they can't put anything on your reference except dates of service". This is not true. Most large organisations have a policy of only confirming dates of service and whether you left voluntarily to minimise their workload and legal liability. But companies can put anything they like on their references, and you can sue them for it if you think it has a negative effect, but if they can prove what they say is true, they are on perfectly sound ground.

That said, you're far from the last person to take sick leave from a toxic work environment and be absolutely fine and thrive once you're away from it - it happens all the time, and people do go on to get other jobs. You could give ACAS a call to discuss your options. If your workplace have skirted or crossed legal lines, you might have an option to negotiate a neutral reference and speedy exit, but these are tricky waters and I'd want expert advice.

References must be factual and it is a fact you've been off. They can't put for example maternity leave down as that's protected, but your leave is not due to a protected characteristic as far as I can tell. Have you submitted any grievance etc? Can you negotiate your exit with company such as agreed reference?

As for sick leave is it pro rata like annual leave? So if you leave 3 months into the year does that mean you only have 4 weeks sick leave as 25% of year worked?

They can put the amount of sick leave you have taken on a reference. Most companies do not, but ultimately it's a provable statement of fact so you'd have a hard time arguing against them doing that.

If you cannot go back there, and have a three month notice period then I would resign now to start that notice period clock ticking. You can still be signed off work during your notice period, although it sounds like you'd exhaust your sick pay before your notice was up.

Is it a small organisation? I have never in my years working in HR come across a Head of HR with little experience of the sector. How do I get these Head of HR jobs 🤣

It would be worth checking your contract/absence policy. A previous employer would only pay SSP (if you qualified) during notice period.

Agree with pp, check your contract and policy wording for sick pay as you may not be eligible for full pay if you resign now.

Also you do not have to work your notice period, you can resign when you are ready and just not go back to work, very doubtful they will call you out for it / take you to court as it’s not worth their time but it could hinder your reference.

Thanks all

this is what I'm worried about. My contract doesn't state about sick leave in notice period.

No it's a large outfit !

I've come across a couple in my time and I think its because so many businesses don't value HR or understand what they do so they just give the role to someone who's been there ages!

No sick leave is any twelve month rolling period.

I'm not sure I could negotiate an exit as we aren't at a point of contention.

I put a written informal complaint in. It was hugely brushed under the carpet. Was verbally I am too sensitive (couldn't be further from the truth) and that person isn't leaving. No response in writing.

You can put your notice in anytime you like the fact you are sick doesn’t matter.

Good luck finding another job, I hope the next one works out better.

I've been prescribed CBT and anti depressants, so potential for disability there.

Appreciate it thank you

Thanks, me too!

Look after yourself op. I would stay off sick at least another month, look for jobs, and then resign. I doubt very much they will force you to work your notice. Take though, I’m in a similar situation.

Thank you 😊

Sorry to hear you're in a similar situation!

I'm just so worried about my reference ruining my potential to get a new job!

What about the long term requirement?

No idea its very early days!

I've not even started my cbt yet, I'm on a wait list.

It may be projected to last longer than 12 months, it certainly feels that way at the moment.

Sorry OP, I just don't see that flying (I'm an employment lawyer)

I'd have to agree (lots of years working in, and a master's degree in HR, and plenty of experience of employment tribunals). I wouldn't expect your contract to talk about sick pay during notice period, as this is more of a policy issue than a contract issue (although policies themselves may be contractual, they tend to go in more detail than your written contract) - I'd have a look at the sickness policy, or possibly the leaver's policy. Is the sick pay scheme discretionary?
You can put in your notice whilst off sick. You may be able to negotiate a shorter notice period with your employer. Obviously, you can't start another job whilst still employed by them. It sounds like your current employer is unlikely to negotiate for you to leave with immediate effect with pay in lieu of notice.
You may well find that your mental health improves quite rapidly once an end-date to your employment is in sight.
Your employer can include sick leave taken in a reference. If a new employer was considering withdrawing a conditional offer on the basis of sickness history, I'd expect them to discuss this with the candidate, partly to check if the absence was disability -related, but also, ideally, to try and gauge if the previous levels of absence were likely to continue in the new job. If, for example, someone had had loads of absence, but it had been due to recurrent tonsillitis, and they'd since had their tonsils removed, for example, most reasonable employers probably wouldn't retract a conditional offer of employment.

I have recently gone through a similar situation many people are not aware but you can work your notice on sick leave as long as you provide sick notes for the full period and not have to attend for the notice period.
but be advised they are able to put your sick leave and days you were on sick leave in total on a reference which would be a negative for a hiring manager.
every employer has finer small print but acro will tell you your legal rights it’s a very helpful free service.

If it helps at all…

I hired someone 3+ years ago from another organisation even though I knew they were on long term sick leave (I knew through the grapevine, it’s not a huge industry).

I was confident that this person was just in an awful situation (restructured into another dept with a toxic work culture). They have been my best hire of all time - I was confident I could provide space for them to thrive and to heal and that their skills would be beneficial to my department. The only thing I wasn’t sure on was whether they would stay once they had recovered. At the moment they are sticking around because we have a good thing going, and I hope that lasts.