Sick pay

Sick pay comes in two forms, Statutory Sick Pay (‘SSP’), which most employees are entitled to receive if they are off sick from work, or contractual sick pay, which are earnings that a Contract of employment states that an employee is entitled to receive in the event of sickness.

Employees may be eligible for SSP which is currently £96.35 a week for up to 28 weeks.

SSP is paid:

• for the days an employee normally works (‘qualifying days’)
• in the same way as wages, that is, on a normal pay day, deducting tax and National insurance

Employers cannot force employees to take annual leave when they're eligible for sick leave.

SSP is paid when the employee is sick for at least 4 days in a row (including non-working days, such as weekends). The employer should start paying SSP from the 4th ‘qualifying day.’ The first 3 qualifying days are called ‘waiting days’ and during this time, the employee is not paid SSP, unless they’ve been off sick and getting SSP within the last 8 weeks.

SSP usually stops when the employee comes back to work or is no longer eligible.

An employee will qualify for SSP when they:

• have an employment contract (either written or verbal) 
• have done some work under their contract
• have been off sick for 4 or more days in a row (including non-working days) - known as a ‘period of incapacity for work’
• earn at least £120 (before tax) a week
• give you the correct notice
• give you proof of their illness after 7 days off sick (not that this is currently extended)

Between 17 December 2021 and 26 January 2022, employees can self-certify sickness for up to 28 days (as opposed to the usual 7 days) under the Statutory Sick Pay (Medical Evidence) Regulations 2021. This means that employees will only need to provide proof of illness (ie by providing a GP ‘fit note’) if they have been on sick leave for more than 28 days. The 28 days include non-working days (eg weekends and bank holidays).

Employees who have been paid less than 8 weeks of earnings still qualify for SSP. Use GOV.UK's sick pay calculator to work out how much SSP should be paid.

You can offer more if you have a company sick pay scheme, however, you cannot offer less. Company schemes are also called 'contractual' sick pay and must be included in an employment contract.

The employee's contract may provide that they will receive their normal salary when absent during illness (in which case, there will be no need for payment of SSP), or they will receive their normal salary less the amount of statutory sick pay. If contractual sick pay is not payable at all under the terms of the employee's contract, then the employee will only be entitled to SSP.

Some company sickness policies state that the employer has the discretion whether to pay contractual sick pay or not and instead, pay SSP. Employees should always check their company Sickness policy if they are unsure of how their employer manages sickness absence.

Employers should be aware of the Data Protection Act 2018 (DPA). The DPA is the main legislation implementing the UK General Data Protection Regulations (GDPR).

The DPA requires employers to comply with the principles for Processing personal data, including being transparent and providing information to employees about personal data and how it is used. Employers can meet this obligation by providing a privacy notice detailing how data collected to keep a record of absence and to manage absence procedures is processed when an employee starts work.

Data in relation to employees’ health is considered a ‘special category’ of data, which means that there are special rules for how the information is processed. The DPA will allow an employer to process special categories of data and criminal records where the processing is necessary for performing obligations or exercising rights under employment law, provided that the employer has an appropriate Data protection and security policy in place.

Fit for Work Scotland provides access to health and work advice online and through a freephone helpline for employees, employers and GPs. The program also provides an assessment service for employees who have reached four weeks of sickness absence (or are expected to) can be referred to their GP or employer. You should include information on Fit to Work Scotland within your Sickness policy.