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Law guide

Sick pay rights

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Sick pay rights

What you're entitled to be paid when you're off sick varies from job to job, and there are also different sick pay schemes in operation - but there is advice available if you have problems.

How much sick pay you'll receive

If you take time off from work due to illness, your pay depends on the terms of your contract of employment. These terms may be in writing, verbally agreed with your employer, implied by 'custom and practice' or a mixture of all three.

If your employer runs their own sick pay scheme, you should be paid what you are due under that scheme. If you aren't entitled to anything under a company scheme, your employer should still pay you Statutory Sick Pay (SSP) if you're eligible.

Contractual (company or occupational) sick pay

Your employer may offer a sick pay scheme that is more generous than the legal minimum (SSP). Your employer can offer any scheme that does not fall below the legal minimum.

When you begin working, your employer must provide you with a 'written statement of employment particulars' within two months of you starting work, which must set out the details of your sick pay scheme. If your company doesn't offer a contractual scheme, the written statement must say so.

A typical scheme

A typical sick pay scheme usually starts after a minimum period of service (for example, a three month probationary period). You would then receive your normal pay during any period that you are off work due to illness, up to a specified number of weeks. After this, you're likely to receive half pay for a further period before any sick leave you take becomes unpaid.

Proof of sickness required by your employer

Your employer may set out how you should tell them that you are sick (e.g. ring in before a certain time of the day). Usually you'll be able to self-certify for a week of illness; beyond that a doctor's note is usually required.

Discretion

Your employer can choose to make an exception and pay you sick pay even if you don't qualify under the company rules. Also, some sick pay schemes say that payments are 'at the employer's discretion', which means your employer can refuse payment if they think the absence is unjustified. However, in doing so they must ensure that their decision is free from discrimination (that is, they're not favouring one category of employee over another when they're required not to).

If your employer has chosen to pay discretionary sick pay in the past, this does not automatically mean they have to in the future. However, it is sometimes possible for a discretionary arrangement to become a part of your contract through 'custom and practice'.

Statutory Sick Pay (SSP)

If you don't have a company scheme, you'll be paid SSP by your employer, provided you qualify. You may be able to get Statutory Sick Pay (SSP) if you have:

  • Been sick for at least four or more days in row (including weekends, bank holidays and days that you do not normally work)
  • Average earnings of at least £111 a week
The current SSP rate (as at April 2014) is £87.55 per week. SSP doesn't start until the fourth day that you're off sick, so you might not get paid anything for the first three days.

Medical statements

Medical evidence is required, for SSP purposes, from the eighth day that you are away from work due to sickness or injury.

New regulations require doctors to provide a medical statement which gives them an option to certify that an employee 'may be fit for work' (known as a 'fit note') after taking into account certain advice. This will generally include recommendations for changes that can be made to the workplace to facilitate your return to work. Note that this applies to England, Wales and Scotland only. Separate regulations will follow for Northern Ireland.

Your employer should then consult with you if it looks likely that you will be able to return to work. Your employer may need to carry out a health and safety risk assessment on your return to work.

Do you get more money if your sickness is because of work?

The amount of sick pay you get isn't usually affected by the cause of your sickness. Your employer may have a special scheme in place for workplace injuries - check with them for details.

If your employer is responsible for your incapacity, you have a legal right to make a personal injury claim. This applies to both a physical injury sustained at work and a psychological injury, like stress. You should speak to a lawyer or trade union representative if you're considering this.

Time off to care for a sick dependant

You can take time off to care for a sick dependant. However, your employer does not have to pay you for this time unless your contract says they must.

Does time off sick affect your holiday entitlement?

Workers continue to accrue (build up) their statutory annual leave whilst absent from work due to sickness or injury, no matter how long the period of absence lasts. You can take your statutory annual leave at the same time as your sick leave and receive your normal rate of pay. Alternatively, you can carry over all of your accrued annual leave, into the next holiday year.

You can also choose to have your statutory annual leave changed to sick leave if your scheduled holiday coincides with you being sick or injured either just before taking your holiday or whilst on holiday. You can then arrange to take the statutory annual leave that you missed at a later date. If there is insufficient time for you to take it in the same holiday year, then you must be allowed to carry it forward into the next holiday year.

If you are dismissed whilst absent on sick leave, then you are entitled to be paid for any untaken holidays from your statutory annual leave allowance.

What to do if you have problems

If you're unsure about anything relating to sick pay, talk to your employer first.

If you're having problems getting your sick pay:

  • Check your contract to find out how much you should get
  • Ask your employer if there's been a problem paying your sick pay
  • If you disagree with your employer's decision on SSP, ask them to write down the reasons for their decision - your local HM Revenue & Customs office can decide the matter.
  • If you disagree with a decision on company sick pay, try following the steps outlined in the article on resolving problems at work.
  • If your employer is refusing to pay you sick pay you're due, this is classed as an 'unlawful deduction from wages'