Sick pay C how much are you entitled to_ and does absence from

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					September 2009

                                                                                                                                     Page 1 of 2
                                                                                                                       Key contact: Philip Landau

Sick pay – how much are you entitled to, and does absence
from work due to ill health put your job at risk?
By Philip Landau                                Company sick pay schemes vary from            The weekly SSP rate is a standard rate set
Employment Law Solicitor                        employer to employer. A typical sick pay      by government. In 2009-10, the weekly
                                                scheme usually starts after a minimum         rate amount to £79.15 and the daily rate
If you need time off from work due              period of service (e.g. a three month         is calculated on a pro rata basis from this.
to illness, you may be entitled to sick         probationary period). You would then
pay.                                            receive your normal pay during any period     Proof of sickness required by your
                                                that you are off work due to illness, up      employer
There are two types of sick pay:                to a specified number of days or weeks.       Your employer will almost certainly require
• Company Sick Pay (also called                 Employers should apply any company sick       proof of your illness which is usually in the
  contractual or occupational sick pay)         pay scheme fairly and whether or not          form of a self- certification or a medical
• Statutory Sick Pay (“SSP”).                   you are a full or part time employee (see     note from your GP for longer periods of
                                                below). If they fail to do so, you may have   absence. An employer cannot require an
If your employer runs their own sick pay        a claim for discrimination.                   employee to produce a medical certificate
scheme it is a 'company sick pay scheme'                                                      for the first 7 days of sickness.
and you should be paid what you are due         Statutory sick pay
under that. This will depend on what is         In the absence of a contractual provision,    Work related illness
included in your employment contract.           employees are entitled to receive SSP from    If your employer is responsible for your
There is no obligation on an employer to        the employer. The limit in entitlement is     illness you may have the right to make
run such a scheme.                              generally 28 weeks in a 3 year period.        a personal injury claim, whether you are
                                                                                              still employed or not. This applies to both
If you are not entitled to anything under       The qualifications for SSP are that an        a physical or psychological injuries such
a company scheme or you have exhausted          employee must:                                as stress. You should speak to a lawyer
your company sick pay, your employer            • have 4 or more consecutive days             or trade union representative if you are
should still pay you SSP if you are eligible.     of sickness (including Sundays and          considering this.
                                                  holidays) where he is incapable of
Company sick pay                                  doing work.                                 What if I work part-time, freelance or
Your employer may offer a sick pay              • notify the absence to the employer.         through an agency?
scheme that is more generous than SSP.          • supply evidence of incapacity (such as      You cannot be discriminated against
Your employer can offer any scheme that           self-certificate or doctor's certificate)   because you work on a part-time basis.
does not fall below the legal minimum.                                                        This means you are entitled to the same
It does seem to be the case that the            There are a number of excluded                company sick pay, but this will be on a
larger your employer, the more generous         employees who are not entitled to receive     pro-rata basis. If you are freelance, you
the company sick pay tends to be. This          SSP. These include those taken on for         would not normally expect to receive
is probably down to the fact that your          a specified period of no more than 3          company, or statutory sick pay as you
absence can be more easily covered by           months and employees who are pregnant         would not be considered to be “an
the more extensive resources of a larger        and go off sick during the maternity pay      employee”.
employer.                                       period. This is not an exhaustive list.
                                                Any contractual salary paid to an             If you are an agency worker, you would
Details of your company sick pay                employee for a day of sickness is to be       almost certainly not receive company
entitlement should be included in your          offset against the SSP due for the same       sick pay from the end client who you
contract of employment or written               day- in other words you don’t get your        are working for although there are
statement of employment particulars. If         company sick pay and statutory sick pay       exceptional circumstances where you
your company doesn't offer a scheme,            for the same day!                             could be deemed to have acquired
they should say so.                                                                           “employee status” where you have
                                                                                              worked exclusively for the same employer
                                                                                              for a long period of time through an

Landau Zeffertt Weir 10 Bickels Yard, 151-153 Bermondsey Street, London Bridge, London SE1 3HA
Tel: +44 (0) 20 7357 9494 Fax: +44 (0) 20 7357 9696 E-mail:
September 2009

                                                                                                                               Page 2 of 2
                                                                                                                 Key contact: Philip Landau

Sick pay – how much are you entitled to, and does absence
from work due to ill health put your job at risk?
There are many other factors that govern      If an employer is to safeguard itself         For further information please contact
whether you acquire employee status,          against a claim for unfair dismissal, it      Philip by telephone on 020 7357 9494
including:                                    should go to some length to find out the      or email:
• your employer provides work within set      current medical position which would          Philip Landau
   hours and pays you for being available     involve consultation with the employee's
   to work                                    medical advisors and possibly have an
• you have to accept the work provided        employee medically examined. If the
                                                                                                Click here for our main
   by your employer and are not free to       employer can show that it has taken these         employment law site
   turn work down                             necessary steps and has properly informed
• your employer controls what you do          itself of the state of employee's state of
   and lays down how and when you do          health and prognosis, and following such
   it                                         prognosis the employer makes a perfectly
• you have to carry out the work              reasonable decision to dismiss the
   personally, and cannot send someone        employee, the employer is likely to have
   else to do it on your behalf               little comeback.
• your employer supplies the tools or
   other equipment for the job                Where the sickness consists of persistent
                                              short absences by unconnected minor
What happens where an employer                ailments, the employee should ideally
dismisses an employee as a result of          be told what level of attendance he is
the employee's sickness?                      expected to attain and that dismissal
Where there are cases of the employee's       may follow if there is no sufficient
long term ill-health, which makes the         improvement. An employer should
future performance of the contract of         be careful to adhere to the correct
employment impossible, the contract may       disciplinary procedures (such as warnings)
be considered to have been "frustrated"       as a Tribunal could well find that a
and the employee will in these                dismissal is unfair on procedural grounds,
circumstances be deemed not to have           even if ultimately, the same decision
been dismissed in the eyes of the law.        would have been made had the correct
This situation is, however, extremely rare.   procedures been followed.

                                              The Tribunal will also consider whether
                                              the ill-health or sickness was caused by
                                              the employer's actions. This may well
                                              have a bearing on whether the ultimate
                                              decision to dismiss is deemed to be fair or

Landau Zeffertt Weir 10 Bickels Yard, 151-153 Bermondsey Street, London Bridge, London SE1 3HA
Tel: +44 (0) 20 7357 9494 Fax: +44 (0) 20 7357 9696 E-mail:

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