Legal 101

Statutory Sick Pay, Sick Leave and Company Sick Pay

Amber AkhtarAmber Akhtar
Last updated on:
February 3, 2022
Published on:
December 19, 2021

Read the employment guide now

Read the Guide

Employees are entitled to take time off work if they are sick and employees can normally self-certify sickness if they are absent for the first 7 days and must provide a doctor’s note for absence after the first 7 days.

However as a temporary measure employees can self-certify for 28 days, this change takes effect from 17 December 2021 and applies to absences beginning on or after 10 December 2021, and up to and including absences which begin on or before 26 January 2022. The self-certification period will revert back to seven days for absences beginning on or after 27 January 2022. If an employee started their sick leave before 10 December 2021, they must provide evidence they’ve been ill for more than 7 days.

This temporary measure has been introduced to allow GP’s to focus on the COVID-19 booster programme for public health. In order for GP’s to focus on the NHS delivery of the coronavirus booster programme and emergency care, employees will not be required to provide their employer with medical evidence of any sick absence for the first 28 days of absence, any absence which exceeds 28 days will require a GP fit note. The guidance can be found here.

Fit Notes and Proving Sickness

In the event of a sickness absence an employee must give the employer a doctor’s ‘fit note’ this can also be referred to as a ‘sick note’ where the employee has been ill for more than 28 days (up until 26 January 2022) in a row and taken sick leave. This includes non-working days such as bank holidays and weekends.

If an employee is sick and requires a sick note there are 2 options:

1. If an employee is self-isolating due to COVID-19

NHS 111 can provide an isolation note and the employee need not contact their GP. More information can be found here.

2. If an employee is sick due to any other illness they must get a fit note from a GP or hospital doctor.

Provided the employer consents, alternative documentation can be provided from a physiotherapist, podiatrist or occupational therapist. (Otherwise known as an Allied Health Professional (AHP) Health and Work Report).

If the employee has been ill for more than 28 days the fit note is free, based on current guidance the employee is only required to provide a fit note if they are absent for more than 28 days. The doctor will either identify the employee as “not fit for work” or “may be fit for work”. In the event the employee “may be fit for work” the employer should discuss arrangements/reasonable adjustments to assist the employee in returning to work. Where an employer does not, or is not able to agree changes to help the employee return to work, the employee should be treated as “not fit to work”.

If the employee returns to work within 28 days of sickness a fit note or alternative proof of sickness is not required. In this instance, the employer will ask the employee to confirm they’ve been off sick including the number of days, otherwise known as “self-certification”.

Sick Pay and Holiday Entitlement

An employee may choose to take holiday (annual leave) while off sick if they:

  • Are physically unable to work, but physically able to take a holiday
  • Have a mental health condition that may be helped with a holiday
  • Are on long-term sick leave and a holiday may help with recovery

An employee must request the holiday whilst off sick and an employer must not force an employee to take a holiday while off sick.

If an employee changes their holiday to sick leave they are paid Statutory Sick Pay (SSP) which will count towards the amount of holiday pay they’ve received. The only exception to this rule are if they do not qualify for SSP or were paid occupational sick pay.

If the employer approves the employee’s holiday request:

  • Sick leave can be paused whilst the employee is on holiday
  • The employee should get holiday pay whilst they are on holiday

Sick leave may continue after the holiday, if the employee is still not well enough to return to work.

Alternatively, if an employee is sick whilst on holiday they must report the sickness to their employer if they would like to take any holiday as sick leave instead. In this instance, the employee may:

  • Get sick pay for the time they were sick (provided they are entitled to sick pay)
  • Keep the holiday to use at another time

Employees may accrue holiday as normal whilst they are off sick (no matter how long the employee is off). As workplaces have varied rules on sick pay entitlement, sick leave and holiday pay, it is important to check your employment contract or staff handbook to see what rules your employer has in place.

Any statutory holiday the employee is unable to use due to illness can be carried over into the next leave year.

Create lawyer-approved contracts for free for 7 days

Statutory Sick Pay

Based on the current government guidance you can get up to £96.35 per week for SSP if you are too ill to work and it is paid by your employer for up to 28 weeks, from the fourth day you’re off sick. In order to qualify for SSP you must:

  • Be considered an employee and have done some work for your employer;
  • Earn an average of at least £120 per week
  • Have been ill or self-isolating for at least 4 days in a row (this includes non-working days)

If you are unable to work you must tell your employer by the deadline they have set. Where there is not a set deadline, you must inform your employer within 7 days as you may lose part of your SSP if you do not tell your employer in time.

The days you’re off sick when you normally would have worked are known as “qualifying days”, you will receive SSP for all your qualifying days except for the first three days, otherwise known as “waiting days”. You are only eligible for payment of waiting days if you have received SSP within the last 8 weeks and that included a three-day waiting period.

You may have regular periods of sickness which are considered “linked”, in order to be linked the sickness periods must:

  • Last 4 or more days each
  • Be 8 weeks or less apart

You will not be eligible for SSP if:

  • You have a continuous series of linked periods for more than 3 years;
  • You have received the maximum amount of SSP (28 weeks)
  • You are in receipt of Statutory Maternity Pay (if you are on maternity leave)
  • You are self-isolating after entering or returning to the UK and do not need to self-isolate for any other reason.

If you are not eligible for SSP or your SSP ends you may be entitled to Universal Credit or Employment and Support Allowance. For more information click here. If you don’t qualify for SSP your employer must send you the form SSP1 within 7 days of you going off sick.

SSP is paid in the same way as normal pay by your employer. If you are employed by more than one employer you may receive SSP from each employer.

Company Sick Pay

If you are off work sick you may be entitled to company sick pay. In addition to physical conditions, mental health issues also count as sickness. An employer cannot pay less than SSP, where an employer pays more than SSP it is considered as ‘company sick pay’ or ‘occupational sick pay’.If you would like to know if you are entitled to company sick pay you can review your employment contract which should state:

  • How much sick pay you are entitled to;
  • How long the sick pay may last; and
  • Any rules surrounding sick pay.

Your employer may also have a staff handbook or a workplace policy which includes guidance, rules and procedures for sick pay. If your contract is silent on company sick pay, the government provides SSP as the minimum amount an employer must pay.

About Legislate

Legislate is a contracting platform where business owners can create contracts to help grow and develop their business. Legislate's employment offer letters and contracts are key in protecting your IP and Legislate's NDAs are crucial to ensure you can have conversations and partnerships to help develop your business and brand. Book a demo or Sign up today to put the confidence back into contracting.

The opinions on this page are for general information purposes only and do not constitute legal advice on which you should rely.

Create your employment contract now

Get Started

Keep Reading

Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.