Three common misconceptions about sick pay

With recent figures showing that many employees have little idea of their sick pay entitlements, Leon Deakin from Coffin Mew explores three common misconceptions.

A recent survey carried out by Direct Line highlighted misconceptions as to what payments an employee is entitled to when they are off work sick.

According to the insurer’s research, only 4% of employees know how much statutory sick pay they are entitled to, leaving many people at risk of struggling financially if they have a long-term condition.

Many mistakenly believe that, on average, they would receive full salary for up to three and a half months. Unfortunately, for most this is simply not the case.

No automatic entitlement to full pay

For starters, there is no statutory right to receive full pay for time spent on sick leave at all.

Instead, the law only provides for employees to receive statutory sick pay (SSP), which pays out for up to 28 weeks.

Of course, some lucky individuals may also be entitled to enhanced sick pay under the terms of their contract of employment or sickness policy.

Understandably, this means that the amount of sick pay will often vary from one employer to another.

However, as the rate of SSP is currently £89.35 per week, individuals face the real prospect of financial hardship should their period of sickness extend for some time and their employer not offer enhanced pay.

This is compounded by the fact that SSP is technically only payable from the fourth qualifying day of absence.

Confusion around notice pay

So what notice pay do employees receive if their contract of employment comes to an end while they are signed off as unwell and in receipt of sick pay?

Unfortunately, there is no hard and fast answer to this one. It depends upon an employee’s individual circumstances or, more specifically, the terms of their contract.

According to the law, the minimum notice for employees with less than two years of continuous service is one week.

Employees with more than two years of continuous service must receive at least one week’s notice for each continuous year worked, subject to a cap of 12 weeks.

Of course, employers can voluntarily choose to exceed this minimum entitlement by including a longer notice period in the contract.

The Employment Rights Act also sets out that employees should be paid in full for the statutory minimum notice period in cases where they cannot work due to absence caused by ill health.

This is where things get a little strange. If an employee’s contractual period of notice exceeds the statutory entitlement to notice by at least one week (ie the employer has contractually provided for at least one week more notice than the minimum entitlement), the right to full pay does not apply and instead the employee is only entitled to SSP.

For example, if an employee’s contract of employment states that they are entitled to five weeks’ notice and his or her statutory minimum notice is only three weeks, then there is no obligation for the employee to be paid normal pay while sick during their notice period.

Conversely if they are only entitled to statutory notice they are entitled to full pay. Of course, if employees exhaust their SSP they are not entitled to any pay.

Health insurance entitlements

Some employers provide permanent health insurance (PHI), which pays employees their salary (in whole or in part) when they are unable to work due to sickness absence, if the condition they are suffering from meets certain qualifying criteria prescribed by the insurer.

An employee’s entitlements, rights and qualification requirements will obviously depend upon each specific policy. However, for an employee to benefit from the salary cover, most PHI schemes require that the employee remain in employment.

So, what happens if an employee’s contract of employment is terminated when they are either entitled to receive or in receipt of PHI?

Ultimately, they could lose their entitlement to receive a benefit under the insurance scheme.

However, as most schemes are put in place specifically to ensure employees receive some protection if unwell, this could give rise to a potential breach of contract claim if employees argue they have been deprived of the payout from a claim.

If their condition is serious or long lasting, this may have been paid out over many years and give rise to a potentially expensive lawsuit. For obvious reasons this is a complex area of law and therefore one to take advice on.

Leon Deakin

About Leon Deakin

Leon Deakin is head of employment at law firm Coffin Mew

22 Responses to Three common misconceptions about sick pay

  1. Avatar
    Ruth 15 Feb 2019 at 6:15 pm #

    Can a firm pay one member of staff ssp & another full pay for being off sick even though they have exactly the same contract stating ‘managers discretion’?!

    • Avatar
      Dee 13 Mar 2019 at 2:06 pm #

      Hi Ruth did you get any answer to this question? In exactly the same predicament

    • Avatar
      Sally Davies 22 Feb 2020 at 9:09 am #

      Short answer not unless your contract states so but get advice from a union as it could be discrimination even if it is in your contract.if your not in a union join one but in the meantime ask advice.

  2. Avatar
    Michael 18 Mar 2019 at 9:27 am #

    If the contract states management discretion then, yes this is possible. As ever, there are a whole load of circumstances to take into account – way too many to list here.

  3. Avatar
    Luke 1 Apr 2019 at 7:20 pm #

    My contract states six months until entitlement of SSP, I’m confused to why I’m not able to receive SSP regardless as I’ve been off work 4 weeks through injury.

    • Avatar
      Dean 9 Sep 2019 at 7:58 am #

      Hi, my contract stated that it was one year until I receive stat sick pay. It’s just how it is generally you’re not entitled to stat sick pay if you have been with your current employer less than a year.

  4. Avatar
    Anne Jones 8 Apr 2019 at 7:55 am #

    I’ve been of work five months because of an operation. I’m a domestic for nhs hospital – my wages go down to half in
    May. I’m hoping to be back by then. Where do I stand with the new sick pay? thank you

  5. Avatar
    tracy c cade 20 Jul 2019 at 8:32 pm #

    I quit my job after I gave a month notice, my boss is demanding that i pay her back the sick pay that i was paid is that legal?

  6. Avatar
    Phlip 13 Aug 2019 at 3:51 pm #

    You’ve got that slightly wrong.

    Where an employee exhausts SSP entitlement and their notice doesn’t exceed the statutory minimum, they are still entitled to be paid their usual salary.

    their SSP entitlement is irrelevant.

  7. Avatar
    Clive 4 Sep 2019 at 1:24 pm #

    Hi, I have been told by a solicitor that there is case law that says full pay is to be paid indefinitely if the company was the cause of the illness eg stress related illnesses. Are you aware of this and do you know where any references could be found?

  8. Avatar
    Cathy 31 Oct 2019 at 8:01 am #

    Hi if I am off work for 2 days due to being sick does my employer pay me for those 2 days being off?

    Thank you

    • Avatar
      Paul M 15 Jan 2020 at 7:05 pm #

      No, as the article says, it kicks in on Day 4.

  9. Avatar
    Heather 5 Nov 2019 at 10:16 am #

    I have been off work sick for 4 weeks. My employer has said they only pay 3wks sick pay. I am presuming from your article that they are entitled to do this. Does this mean that I then have no pay for the 4th week or can I claim anything from the government?

  10. Avatar
    Lucas 22 Jan 2020 at 11:59 am #

    So my company allows 20 days sick a year from 5> years. I’m at that point now. Does this means I can take take 20 days paid sick?

  11. Avatar
    Susie Leyens 12 Feb 2020 at 7:35 pm #

    How do you make up the short fall whilst on SSP, I don’t want to get into debt whilst off sick. I need £1,000 a month to pay my mortgage, council tax, bills etc but SSP is only £94 a week. Any advice welcome.

    • Avatar
      Abraham 12 Mar 2020 at 11:02 am #

      Look into getting income protection. I offer FREE consultations around this.

      • Avatar
        Syed 14 Mar 2020 at 5:39 pm #

        Hi need some advice on income protection so can tell my employer. THNX

  12. Avatar
    bill 5 Mar 2020 at 11:10 am #

    hi lm fine i work on the council i get 6morths full and 6 morths half all people who work must have the same.

  13. Avatar
    Jean Tracy 6 Mar 2020 at 5:54 pm #

    Hi. The Company I work for offers Group Income Protection when sick, paying 80% of your salary if off sick. I also have a policy paying a monthly benefit if off sick. Am I entitled to both and do I have tell my employers insurance company about my own private insurance?

  14. Avatar
    Peter 22 Apr 2020 at 8:13 am #

    I was in a car accident, been hospitalized for three months, brain damage. work gave me half pay, I’m worried I’m not fit to go back to work, pls can u help me

  15. Avatar
    Julie Belsey 23 Apr 2020 at 3:48 pm #


    My company contract states that up to 4 weeks company sick pay will be given. All company sick pay is subject to Trustee Decision (Charity). From this month, CEO has said that only SSP will be paid for duration of the lockdown (until end of June). Can this decision be made, as previously company sick pay as been paid and as such has set a precedent?

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