An employer has a legal duty to pay statutory sick pay to an eligible employee who becomes ill and is absent from work as a result of that illness.
An employer cannot contract with an employee to limit, exclude or modify the employee’s right to SSP, and an employee cannot be required to contribute to an employer’s cost under its obligation to pay SSP.
The current rate of SSP is £92.05 per week paid on a pro rata basis for the days an employee normally works (the qualifying period). It should be paid on normal pay days and tax and National Insurance Contributions will be deducted. Employers must pay this for up to 28 weeks.
Employers can offer more if they have a company sick pay scheme, but they cannot offer less. Company schemes (also known as contractual or occupational sick pay) must be included in an employee’s employment contract.
Entitlement to SSP
An employee is entitled to statutory sick if they:
- are classed as an employee and have done some work for their employer;
- have been ill for at least four days in a row (including non-working days);
- earn an average of at least £116 per week;
- inform their employer they’re sick within the company’s stipulated time limits – or within seven days if the employer does not have one.
Employers must start paying SSP from the fourth ‘qualifying day’ (ie, day an employee is normally required to work). The first three qualifying days are called ‘waiting days’. A day cannot be counted as a sick day if an employee has worked for a minute or more before they go home ill.
Although employers do not usually pay SSP for the first three qualifying days, they are required to do so if the employee has been off sick and receiving SSP within the last eight weeks.
Employees do not qualify for SSP if they:
- have received the maximum amount of SSP (28 weeks);
- are in receipt of statutory maternity pay or maternity allowance (there are special rules for pregnant women and new mothers who are not entitled to these payments);
- are off work for a pregnancy-related illness in the four weeks before the week (Sunday to Saturday) that their baby is due;
- were in custody or on strike on the first day of sickness (including any linked periods);
- are working outside the EU and are not required to pay National Insurance contributions;
- received Employment and Support Allowance within 12 weeks of beginning or going back to work for their employer.
Linked sickness periods
If an employee is regularly off sick, the periods they are off may be regarded as linked. To be linked, the periods must last four or more days each and be eight weeks or less apart. SSP will no longer be payable if an employee has a continuous series of linked periods that lasts more than three years.
Statutory annual leave continues to mount up while the employee is off work ill, regardless of how much time they take off due to illness and can be taken during sick leave. An employer cannot force their employees to take annual leave when they’re eligible for sick leave.