In the UK, certain workers have the right to sick pay from their employer.
Table of Contents
- Do employers have to pay sick pay?
- Who is eligible for statutory sick pay?
- Who doesn't qualify for SSP?
- How much statutory sick pay can I get?
- Sick pay and maternity pay
- When does SSP stop?
- What evidence do you need to claim sick pay?
- What is discretionary sick pay?
- What happens if my employer won't pay sick pay?
- Do employers have to pay sick pay for hospital appointments?
- What to do if you don't qualify for sick pay
- How can Lawhive help?
Do employers have to pay sick pay?
By law, employers have to pay employees statutory sick pay (SSP) as a minimum if they are off sick because of physical or mental health issues.
This system is in place to make sure eligible workers maintain a certain income if they're unable to work due to illness.
SSP guarantees employees won't face financial hardship when they're ill. While it sets a minimum standard, many employers opt to offer enhanced sick pay packages to support their staff, although this is not a legal requirement.
Who is eligible for statutory sick pay?
An employee or worker can get statutory sick pay if they:
Have an employment contract and have done some work under their contract;
Have been off sick for at least 4 days in a row;
Earn, on average, at least £123 per week before tax;
Have told their employer about their sickness within the given timeframe, usually within 7 days however this may differ per the terms of the contract of employment.
Sick pay for employees on casual, short-term, and zero-hour contracts
Employees on casual, short-term, or zero-hours contracts can get SSP if they meet certain criteria.
If they've worked for at least 3 months continuously then SSP lasts for the entire sick leave period unless the contract ends or SSP eligibility stops for other reasons. If they haven't worked continuously for this long then SSP should last until the end of the agreed work period and will stop after that unless they've accepted more work with the same employer.
Sick pay for agency workers
Agency workers who are classified as employed earners and meet certain conditions can get SSP.
For agency workers with ongoing contracts between assignments, SSP continues until the contract ends or eligibility stops for other reasons.
Agency workers who meet the conditions can get SSP from the first day of work under their contract. If they have a future assignment starting within 8 weeks after the current one ends, SSP starts from day one of that future assignment, even if they haven't started working yet.
Sick pay for educational workers
Educational workers such as teaching assistants, lecturers, nursery staff, school bus drivers, and kitchen workers can receive SSP if they meet the standard criteria, however, whether or not they are eligible to receive SSP during periods of sickness outside of term time depends on their contract type.
If an employee has a year-round contract: including between term times SSP eligibility is the same as for a permanent employee and lasts for the entire sick leave period unless the contract ends or SSP eligibility stops for other reasons.
If the employee's contract only covers the school term: SSP eligibility ends with the term times, and if one contract ends and another begins, SSP eligibility ends with the first contract.
If an individual falls sick between contracts: they're not eligible for SSP during that period. If the new contract starts within 8 weeks of the old one ending and they've worked under the old contract, they're eligible for SSP again when the new contract starts, even if they haven't worked under it yet.
Sick pay for employees with one or more contracts
SSP eligibility for employees who have multiple contracts with the same, or different employers, will vary depending on whether their earnings are combined for National Insurance contributions.
If the employers are the same or connected and earnings are combined, their average weekly earnings are also combined to determine SSP eligibility and they'll receive one SSP payment that covers all their contracts. That being said, the employee must be unable to work under all contracts to be eligible for this.
If the employee's earnings are not combined (for example, they have two separate jobs or contracts), then their average weekly earnings are calculated separately for each contract to work out if they are eligible for SSP. In this situation, they will receive more than one SSP payment for each of the contracts they're unable to work under.
Sick pay for agricultural workers
Statutory sick pay rules for agricultural workers are different depending on where they live and when they were employed.
In England, workers hired before October 1st 2013 may qualify for Agricultural Sick Pay instead of SSP.
All other agricultural workers in England, including those on or after this date, are eligible for Statutory Sick Pay providing they meet the standard requirements.
Sick pay for directors
Directors must meet the requirements for SSP, including having average weekly earnings at least equal to the Lower Earnings Limit of £123.
Directors' earnings are calculated depending on how they're paid. Generally, any money they get from the business counts, including director fees, dividends, and wages for other work.
As a rule if:
Directors get a regular salary, they calculate their earnings like any other employee;
Payment is agreed upon only by a formal decision, those dates are used instead of normal paydays;
Payment is decided by directors, and the date of payment is used;
Directors get paid in different ways, they calculate earnings like other employees, including separate payments.
Sick pay for employees working outside of Great Britain
Employees working outside Great Britain when they get sick can still get SSp if they meet other requirements and if their employer is liable to pay Class 1 (Secondary) National Insurance contributions, or they would be if the employee's earnings were high enough.
If an employee's inability to work continues but the employer's liability to pay Class 1 (Secondary) National Insurance contributions ends, the employee's SSP eligibility continues until it stops for another reason, such as reaching the maximum allowance or no longer being unable to work.
Sick pay for mariners
A mariner, even if not working in Great Britain, can get SSP if they work on a British ship or their contract is made in the UK and their employer has a place of business in Great Britain.
However, mariners on foreign-going ships, or who have been on such ships in the last 13 weeks before falling ill won't get SSP, even if they work in Great Britain.
Sick pay for airmen
An airman is considered an employee for SSP eligibility if their employer has a place of business in Great Britain.
In some circumstances, airmen not employed in Great Britain are still eligible for SSP in certain circumstances. However, they won't be if they're not domiciled in Great Britain unless under exceptional circumstances.
Who doesn't qualify for SSP?
While SSP aims to help many employees and workers, certain situations and conditions can disqualify individuals from receiving it, such as:
Those already receiving statutory maternity pay;
Individuals who have reached the 28-week limit for SSP;
Armed forces personnel;
Individuals on strike or in legal custody;
Self-employed individuals, including self-employed agency workers.
How much statutory sick pay can I get?
The weekly rate for statutory sick pay is £109.40 for up to 28 weeks. It's paid for the days an employee usually works (qualifying days) and is paid in the same way as an employee's wages (i.e. payday) and is subject to tax and National
It's important to note, however, that SSP doesn't apply to the first two 'waiting days' of sickness absence.
Employers can choose to pay their employees more than this at their discretion, but they cannot pay less.
Sick pay and maternity pay
If you are pregnant and have complications that require time off work, you could get SSP until your baby is born. Then, you might qualify for Statutory Maternity Pay. This is true even if your illness isn't pregnancy-related.
You can receive SSP until the fourth week before your due date. After that, if you're still unwell, you can switch to Maternity Allowance or Statutory Maternity Pay.
When does SSP stop?
Employees stop receiving SSP when they start working again, or after receiving payments for 28 weeks.
SSP may also stop if an employee changes jobs or their employment status changes (i.e. they move from employed to self-employed freelancer).
SSP will also end for individuals who qualify for Statutory Maternity Pay or Maternity allowance.
What evidence do you need to claim sick pay?
Employers may ask for a 'fit note' (also known as a sick note) before paying SSP and employees need to produce a fit note from a doctor if they're off sick for more than 8 days in a row.
What is discretionary sick pay?
Discretionary sick pay is when an employer decides to provide additional (or enhanced) pay for sick leave.
This means they can choose to offer better pay when an employee is off sick, but it's not guaranteed, it is at their discretion.
If a company offers discretionary sick pay, they must clearly outline this in their employees' contracts. Furthermore, discretionary sick pay policies should not discriminate against employees based on protected characteristics, like disability. Nor should part-time employees be unfairly disadvantaged by discretionary sick pay policies.
What happens if my employer won't pay sick pay?
If your employer won't pay you statutory sick pay, you should talk to them first to try to resolve the issue.
If you can't sort the problem out this way, ask them to explain, in writing, why they won't pay SSP. They should do this on a form called SSP1.
If they refuse to do this or their reasons aren't justified in your eyes, you have the right to complain to HMRC. You must do this within 6 months of the date you should have started getting SSP.
Do employers have to pay sick pay for hospital appointments?
Hospital appointments usually don't qualify for sick pay unless you're too sick to work or you have a doctor's note saying you can't work after your appointment.
Therefore, it's better to go to doctor or hospital appointments during your time off or after work hours.
What to do if you don't qualify for sick pay
If you're not eligible for sick pay, your employer doesn't have to pay it. This could happen if you don't meet the requirements explored above, or you've been on sick leave for a certain amount of time.
If this is the case, you may want to explore if you're eligible for certain benefits such as Employment and Support Allowance (ESA) or Universal Credit.
That being said, should you think your rights aren't being upheld and they're withholding sick pay you are entitled to you may be able to make a claim against them for unlawful deduction of wages.
How can Lawhive help?
Are you struggling to manage sick leave in your workplace? The rules around SSP and discretionary sick pay can be difficult to get your head around, whether you're trying to understand your rights as an employee or your obligations as an employer.
No matter which side of the fence you fall, our network of expert employment lawyers is here to help quickly, and for affordable fixed fees.
For tailored advice and a no-obligation quote for the help of the best solicitor in our network for your case, get a free case evaluation today from our legal assessment team. We can help you find the best solution for your situation.