What are your rights to notice when you are on sick leave?


What are your rights to notice when you are on sick leave?

If you have been dismissed on the grounds of ill health you would be entitled to be given notice of termination of your employment. This will be the greater of either the period set out in your contract of employment, of if this is missing, the statutory minimum notice period of 1 week for every year worked (up to a maximum of 12 weeks).

Whether or not you are entitled to actual pay during this period will be governed by how generous your sick pay entitlements are and whether or not your contractual notice period (if you have one) is longer than your statutory minimum notice period.

The position if you are relying on a statutory notice period only.

If you have been employed for more than 1 month and less than two years, your statutory minimum notice period is not less than one week. Where your period of employment is two years or more, the statutory minimum notice period is not less than one week for each year of continuous employment, up to a maximum of 12 weeks.

If your employer is only required to give you the statutory minimum notice (because there are no notice clauses in your contract), you are entitled to receive full notice pay for that period of notice, regardless of whether you are on sick leave. This applies even if you have exhausted your statutory entitlement to statutory sick pay and have been on sick leave for a long period of time. If you are still receiving sick pay, the sick pay remaining would be offset against the amount of notice pay you are due.

The position if you have a right to contractual notice.

If you have a contractual notice period, whether or not you are entitled to actual notice pay over and above your Statutory Sick Pay or contractual sick pay will depend on whether the amount of notice your employer has to give under your contract of employment is more or less than your statutory minimum notice period.

If your contract of employment obliges your employer to give notice which is at least a week more than the statutory minimum notice period of 1 week for every year worked, your employer does not then need to make any additional payments during the notice period over and above either contractual sick pay or Statutory Sick Pay (SSP)  In the event that your entitlement to sick pay has already been exhausted, no pay at all may be due during your contractual notice period.

For example, if you had exhausted your sick pay entitlement and been working for 5 years (entitling you to 5 weeks’ statutory minimum notice) and your contractual notice period was 12 weeks, you would not be entitled to any pay during your notice period if you were on sick leave.

If, however, your contractual entitlement to notice is at least a week shorter than your statutory entitlement to notice then you would be entitled to full pay for your statutory minimum notice period even if your sick pay has been exhausted. As above, if you are still receiving sick pay, this can be offset against the amount of notice pay due.

If you are on a 3 months’ calendar notice period you cannot usually benefit from this rule given that the courts have clarified this period is calculated as at least 1 week more than the maximum statutory notice entitlement of 12 weeks.  By contrast, if you were on a 1 month notice period and you were with your employer for 6 continuous years, you would be entitled to 6 weeks’ statutory notice.

This means you will be better off if you are only entitled to receive statutory minimum notice (or your notice does not exceed the statutory minimum by more than 1 week- although it is fair to say that some employers are not aware of the above rules, which means they may simply make a payment of your full salary during notice in any event. Conversely, they may not be paying enough.

Please click here for the Sickness page

Please click here for the Notice page

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