Guide to Sick Pay

Employee Rights

There are 2 potential sources of sick pay:

  • Contractual/occupational sick pay which will be provided for under your contract of employment; and
  • Statutory Sick Pay
Sick Pack - Legal Rights

Contractual Sick Pay

If your employer has agreed to pay you in the event that you are off sick, the amount and duration of any sick pay should be stated in your contract of employment, staff handbook or written statement of employment particulars.

The amount payable under a contractual sick pay scheme can exceed the amount payable under the statutory scheme (see limits below) but it cannot provide for payment below the level of Statutory Sick Pay.

In the event that you become ill, your contract may specify what you need to do in order to qualify for contractual sick pay. For example, you may need to obtain a doctor’s certificate. If you fail/delay in complying with any requirements set out in your contract, you may lose some or all of your entitlement to contractual sick pay.

Statutory Sick Pay ("SSP")

Entitlement to SSP is not automatic and it is only payable in respect of "Qualifying Days".

To qualify for SSP, you must:

  • have been off sick for 4 or more days in a row (which included weekends and any other days that you would not normally work); and
  • have average earnings which are at least £95 per week before tax and National Insurance are deducted; and
  • notify your employer that you are sick.

Qualifying Days

Qualifying days are the days that you are required to work under your contract of employment. SSP is not payable in respect of the first three Qualifying days.

If, for example, your contract requires you to work from Monday to Friday and you become sick on the Monday, your Qualifying Days would be Monday, Tuesday and Wednesday. If you are still sick on Thursday, you would qualify for payment of SSP from Thursday onwards.

If you work on a part-time basis, for example, Monday to Wednesday each week and you become sick on the Wednesday, your qualifying days would be Wednesday and Monday and Tuesday of the following week. If you are still sick on the Wednesday of that following week, you would become entitled to SSP.

Notifying your Employer

If your employer is operating a Statutory Sick Pay scheme, you need to comply with any obligations which are set out in your contract to ensure that you obtain payment of Statutory Sick Pay. If you are unsure of the position, ask your employer to confirm what you need to do.

What should I do if my employer does not have set rules on sick pay?

If your employer does not have any set rules, then to ensure that you obtain payment you should:

  • As soon as possible and no later than 7 days after the 1st day of sickness, notify your employer that you are sick. Note: if you delay, your employer does not need to pay you sick pay for the days before you tell them you are sick.
  • If requested, complete a self-certificate form for the first 7 days of illness and give/send it to your employer. You can download an "Employee’s Statement of Sickness" form here.
  • If you are sick for more than 7 days, your employer can ask you to provide medical evidence that you are sick. This means that you may need to ask your GP for a medical certificate eg doctor's note.

How much will I be paid and how will I be paid?

The standard rate of SSP is £85.85 per week(2012/2013). Payment is subject to deductions for tax and National Insurance and is payable for a total of 28 weeks in any one period of sickness.

You should receive your SSP at the same time and in the same way you would expect to receive your normal wages/salary.

What can I do if my employer does not pay me sick pay?

  • Check that you have met all the necessary requirements to qualify for payment;
  • Ask your employer to explain why they have not paid you sick pay and try and resolve the matter amicably.
  • Consider whether you wish to bring a claim (see below) to recover the payment due.

Legal action

If you have met all the necessary requirements for payment of sick pay, your employer’s failure to pay you may give rise to a claim for Unlawful Deduction from Wages and/or breach of contract.

An Unlawful Deduction from Wages claim can be made to the Employment Tribunal. The claim must be presented no later than 3 months less one day of the date upon which you ought to have been paid. If there has been a series of failures to pay, your claim can be presented within 3 months less one day of the date of the last failure to pay. For example, if you should have been paid sick pay on 30 June, your claim should be presented to the Tribunal by no later than 29 September.

As an alternative, you could bring a claim for breach of contract in respect of the failure to pay you sick pay. Such claims cannot be brought in the Employment Tribunal unless your employment has ended, however, you can bring a breach of contract claim in the Civil Court within 6 years of the failure to make payment.

Finally, employees seeking to claim SSP and who dispute the employer’s failure to pay, can register a dispute with the HM Revenue & Customs Disputes Team on 0191 22 55 221.

What can I do if I do not qualify for SSP?

If you are not eligible for SSP your employer should provide you with a completed SSP1 form. If they do not, ask your employer to complete one and return it to you. You can download a printable version of the form here.

You can use the completed SSP1 form to support your claim for Employment and Support Allowance from Jobcentre Plus. The telephone number for Jobcentre Plus is 0800 055 66 88. If you need to use a textphone, the contact number is 0800 023 48 88.

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Linda Stewart - Employment Law Solicitor - Wimbledon, London

Linda Stewart
Partner, Head of Employment Law
T: 0844 858 3800

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