There is no automatic right to receive pay whilst you are off work sick, unless your contract specifically provides for this and/or you qualify for statutory sick pay. Read on for more information about your entitlement to sick pay.
Statutory Sick Pay (SSP)
If you qualify for SSP you are entitled to receive a minimum weekly payment (currently £94.25 as from 6 April 2019) for up to 28 weeks in any period of incapacity for work (or a series of linked periods of incapacity).
You qualify for SSP if you:
- Are working under a contract of employment;
- Are incapable of carrying out your contractual duties due to illness;
- Have average weekly earnings of not less than the lower earnings limit based on the previous eight weeks – currently £118 (before tax).
Periods of incapacity will be linked if they are not more than 56 calendar days (8 weeks) apart. However if a series of linked periods of incapacity run over 3 years, your SSP will stop at three years, even if it has not yet been paid for 28 weeks.
SSP is only payable for ‘qualifying days’. You and your employer can agree which days of the week are qualifying days. If there is no agreement as to which days are working days in a particular week then every day is deemed to be a qualifying day.
SSP is not payable for the first three qualifying days (referred to as ‘waiting days’) in any period of incapacity for work. If you are absent from work again within 8 weeks of the first absence, you don’t need to clock up another 3 days before SSP becomes payable on the 4th day. These are known as linked waiting days.
How to claim SSP
- Notify your absence to your employer within your employer’s set deadline, or within 7 days if they do not have one;
- Provide evidence of your incapacity as agreed with your employer such as a self-certificate or doctor’s certificate, also known as a ‘fit note’
Your employer can’t insist on a doctor’s note for the first 7 days of sickness absence or for a period of absence of less than 7 days as a condition of paying SSP.
Your employer can’t withhold SSP for late receipt of medical evidence, only for late notification of sickness.
Contractual Sick Pay
Your employer may provide contractual sick pay in excess of SSP. The details of any contractual sick pay scheme would usually be set out in your statement of terms of employment, or your contract or your employer’s sickness absence policy.
Even if there is no express contractual right to sick pay the courts have sometimes implied a term into the employment contract obliging the employer to pay the employee. For example, your employer may have an unwritten policy of continuing to pay employees when off sick which could give rise to a contractual right to be paid for a reasonable period, through custom and practice.
It is common for employers to specify time periods during which contractual sick pay is payable. They may set a minimum period of payment after which further payment is at the discretion of the employer. It is important that your employer applies its discretion fairly to avoid allegations of unlawful discrimination or breaching the implied term of mutual trust and confidence.
Any contractual sick pay would be offset against SSP for the same day.
How can LincsLaw help?
The above is a general overview of entitlement to sick pay. For specific advice on your own situation please contact us on 01522 440512 or 01522 440515 (direct dial) or visit our website at www.lincslaw.co.uk.
Specialist Employment Solicitor