What will a client be paid if they are off sick in their notice period?
A how to guide to a client’s right to notice pay if they are dismissed or resign when they are off sick
Most employees are entitled to notice of dismissal, and have to give notice if they resign.
An employee with more than one month’s service is entitled to at least a week notice of dismissal. Exactly how much notice they are entitled to depends on their length of service.
If an employee resigns they have to give their employer at least one weeks notice.
These notice rules apply even if the employee is off sick at the time they give or receive notice. However the employee isn’t always entitled to full pay for their notice period if they are off sick during it.
There are 3 steps to working out whether a client on sick leave should be paid for a notice period.
Step 1: Work out how much statutory notice of dismissal the employer has to give the client
This step is important even if you are advising a client who is resigning.
Statutory notice is the amount of notice the law says employers should give an employee. This is:-
- Clients employed more than one month but less than two years: 1 week notice
- Clients employed 2 years or longer: 1 week for every year of service (up to a maximum of 12 weeks)
Step 2: Check whether the client has a right to a longer notice period under their contract
Some clients will have better rights to notice under their employment contract. If so you need to work out the difference between their contractual and statutory notice.
Step 3: Check the right to pay
Client only entitled to statutory notice: Normal pay
Client’s contractual notice is the same as their statutory notice: Normal pay
Client’s contractual notice is longer than statutory notice by one week or more: Whatever the client is entitled to whilst off sick (eg SSP, half pay, no pay at all)
Client’s contractual notice is longer than their statutory notice but by less than a week: Normal pay
The ‘normal pay’ protection only applies to the statutory period of notice. So:
- if an employer gives an employee extra notice they only have to pay full pay for the statutory part of the notice.
- if an employee gives more than the statutory 1 week notice they will only get normal pay for 1 week.
The employer can pay sick pay for the rest of the notice period.
Examples: dismissal
Kim is entitled to 4 weeks statutory notice of dismissal. She has no contractual notice period. She is currently paid statutory sick pay but will be entitled to her normal weekly earnings in her notice period. Her employer will have to top up the SSP to normal earnings.
Arthur has been working for 6 years, so is entitled to 6 weeks’ statutory notice. His contractual notice period is 12 weeks. He has been off sick for 18 months and no longer receives any sick pay. He is not entitled to any pay during his notice period. This is because his contractual notice (12 weeks) exceeds his statutory notice (6 weeks) by more than one week.
Examples: resignation
Kwasi’s contract says that he has to give 1 month notice if he resigns. He resigns while off sick, giving the required 1 month notice.
He is only entitled to statutory notice if he is dismissed, which means he has ‘normal pay’ protection. But this only applies to the statutory minimum part of the notice he gives. The statutory minimum notice an employee has to give when resigning is 1 week. Kwasi is therefore entitled to full pay for 1 week of his notice period and then whatever sick pay he is entitled to for the rest of the month.
Angelique has been employed for 2 years and is entitled to 3 months notice if she is dismissed. She resigns, giving her one weeks notice and goes off sick for the notice period. She will not be entitled to her normal pay in her notice period. This is because her right to notice of dismissal exceeds her statutory notice period by more than a week. If she is entitled to any sick pay, she will receive that during her notice period.
Conclusion
Section 87 of the Employment Rights Act 1996 gives some important guarantees for pay in the notice period. It means that employees who are only entitled to statutory notice are better off than those with longer contractual rights if they are dismissed or resign while off sick.
Tracey Moss is an Employment Expert at Citizens Advice.
