Sickness benefit

Subject to certain conditions, most employees are entitled to receive statutory sick pay when they are absent from work for a period of at least four days up to a limit of 28 weeks in a three year period. However, in addition to this, many employees also have a contractual right to receive their normal salary from their employer for a certain period of time.

Statutory Sick Pay

The law provides that if an employee is ill and unable to return to work then he or she will, in most circumstances, be eligible to receive statutory sick pay (SSP). This is the minimum amount employers must pay to an employee by law.

For an employee to be eligible to receive SSP, they must be sick for four or more consecutive days and:

• earn at least £90 a week,
• be between 16 and 65 years of age
• have performed some work under their contract of employment.

An employee is entitled to receive SSP for a maximum of 28 weeks in any three year period, but must return to work for at least eight weeks before a further 28-week period can begin. An employee who has a continuing illness or who is unable to work after SSP has run out, may be able to claim incapacity benefit and/or income support. However, it should be noted that an employee cannot receive both SSP and incapacity benefit at the same time.

Procedure for claiming SSP

In order to be eligible to claim SSP an employee must inform their employer of their absence and provide evidence of their incapacity - usually in the form of a doctor’s note. In the absence of the employer’s own rules for notification, the law provides that an employee must inform the company of any day upon which he or she is unable to work no later than seven calendar days after the date of the absence. There are exceptions to this, including where there wasa good cause for the delay and the employer accepts this.

Usually, the employer will supply the proper documents to make a claim. For an absence of a week or less, a self-certification completed by the employee is usually all that is required as evidence of incapacity, whilst after that a doctor’s note will be required.

Other factors to consider

A number of other factors are worth bearing in mind:

• in the event that an employee is sick whilst on leave from the company, they should still inform their employer since they may be entitled to additional days leave to compensate,
• if an employee’s employment ends while they are receiving SSP, then the payments will stop,
• if an employee goes into hospital then this will not affect their entitlement to SSP
• employees who work abroad may still be entitled to SSP provided their employer pays their NIC payments

Additonally, employees should be aware that they may lose some or all of their sick pay if they fail to tell their employer that they are off sick, unless there was a good reason why they were unable to do so.

If an employee is off work for more than four short periods of four to seven days in one year, or off for a longer period of time, then the employer can ask a government agency called Medical Services to carry out an investigation and produce a report on the employee’s illness. If that report concludes that the employee has been off work without good reason, then they can be refused SSP.

Dismissal for illness

If an employee is unable to do their job because they have been on sick leave for a long period of time, then an employer may be justified in regarding this as a fair reason for dismissal.

For the employer to rely on this they must be able to show that they have acted reasonably in doing so. This will involve:

• consulting with the employee in an effort to find out about their illness and the likelihhod of their being able to return to work within a reasonable timescale
• giving due consideration to any alternatives that might be available - for example finding the employee a different role within the firm that they are able to undertake, reducing the employee’s workload or hours or allowing them to work from another ocation or from home
• ensuring that the decision to dismiss after the period involved is commensurate with the size of the company - for example a smaller or less financially secure employer may need to make such a decision sooner than one with larger resources upon which to draw
• ensuring that they followed the appropriate procedures for dismissal - as failure to do so may render the dismissal automatically unfair

Finally, it is vital that the employer have due regard to the provisions of the Disability Discrimination Act 1995 before considering dismissal on the grounds of long-term sickness. If the reason for the employee’s absence was related to disability rather than illness then they may have a claim against the employer for discrimination, and in this regard it is worth bearing in mind that disability can include certain conditions such as HIV and cancer as well as some mental health problems.

Contact our Employment Solicitors on 084 4804 4800 for more information on Sickness Pay.