Legal Requirements for Sick Pay and Statutory Sick Leave

In England and Wales, sick pay and statutory sick leave protect workers who are unable to work because of illness. These rights arise from employment law and statutory payment provisions, primarily Statutory Sick Pay (SSP), which employers must administer. This article explains who is entitled to sick pay, how statutory sick leave and pay operate, eligibility criteria, procedural requirements, and practical issues in real‑world situations. It also contrasts statutory minimum entitlements with enhanced contractual sick pay where employers offer more generous arrangements. All explanations use clear, precise language and UK‑specific legal terminology to ensure accessibility for non‑experts and credibility for solicitors.

1. What Statutory Sick Pay Is

Statutory Sick Pay (SSP) is the minimum payment an employer must make to eligible employees who are off work due to illness. SSP is paid by the employer and is calculated at a fixed weekly rate for weeks when an employee cannot work because of sickness. As of the 2025–26 tax year, the SSP rate is £118.75 per week and can be paid for up to 28 weeks per eligible period of sickness.

SSP protects workers from loss of income during illness and is a statutory entitlement; employers cannot contract out of this minimum obligation, although many offer more generous, contractual sick pay schemes.

2. Eligibility Criteria for Statutory Sick Pay

To qualify for SSP, an employee must satisfy several requirements:

2.1 Employment Status

The individual must have an employment contract and be classed as employed for tax purposes (PAYE), working under a contract of service. Self‑employed people do not qualify for SSP and may instead be eligible for other benefits such as Employment and Support Allowance.

2.2 Period of Incapacity

The employee must be sick for more than three days in a row (including non‑working days). This is known as a period of incapacity for work. SSP becomes payable from the fourth qualifying day of sickness unless linked sickness rules apply.

2.3 Earnings Threshold

The employee must earn an average of at least £125 per week before tax, calculated over a relevant period prior to the sickness. This is known as meeting the Lower Earnings Limit for SSP purposes.

2.4 Notification

The employee must inform the employer they are sick within any employer‑set deadline or within seven calendar days of the first day of incapacity if no specific deadline exists.

2.5 Work Performed

The employee must have done some work under the contract, even if only briefly, to trigger eligibility.

Employees may qualify for SSP from more than one job if they meet the criteria in each role.

3. How Statutory Sick Pay Works in Practice

3.1 Waiting Days and Payment Calculation

SSP is payable only after a sickness absence of at least four consecutive days (including non‑working days). The first three qualifying days are known as waiting days and are not payable unless the employee has received SSP in the preceding eight weeks and those days were not paid previously.

The weekly SSP rate applies to the days an employee would normally work (called qualifying days). If an employee works a five‑day week, the full weekly SSP applies when off sick for a full week; catch‑up calculations use a daily rate derived from the weekly rate.

3.2 Duration of Entitlement

An employee can receive SSP for up to 28 weeks in a continuous sickness period, provided eligibility criteria continue to be met. SSP stops when the employee returns to work, no longer qualifies, or the 28‑week limit is reached.

3.3 Linked Periods of Sickness

If two periods of sickness are separated by eight weeks (56 days) or less, they are treated as linked periods. Only one set of waiting days applies across linked periods, reducing gaps in payment entitlement.

4. Notice and Medical Evidence

Employers may require employees to provide medical evidence if sickness exceeds seven calendar days. A fit note (or similar medical statement) from a healthcare professional may be requested, although employers can decide what evidence to accept. If an employee cannot produce evidence promptly due to difficulty obtaining an appointment, employers should be reasonable in their approach.

5. Interplay with Annual Leave and Other Rights

SSP is a payment entitlement; it does not affect statutory rights such as annual leave accrual. Time on statutory sick leave counts toward holiday entitlement, and employers cannot force employees to take annual leave instead of SSP.

Contractual sick pay schemes may offer more generous terms, such as full pay for a set number of weeks, but these must align with statutory minimums; contractual terms may be enforceable as part of the employment contract.

6. What Happens When SSP Ends or Is Denied

6.1 SSP1 Form and Benefits

If an employee is not eligible for SSP or if their SSP period ends while still sick, the employer must provide form SSP1, which the employee can use to apply for benefits such as Employment and Support Allowance (ESA). This form must be given within specified timeframes to support benefit claims.

6.2 Disputes and Appeals

If an employer refuses SSP that the employee believes is due, the employee can request a written explanation. If unresolved, the worker may contact HM Revenue & Customs (HMRC) statutory payment dispute team to challenge the decision.

7. Contractual Sick Pay and Additional Schemes

Many employers provide enhanced sick pay through contractual schemes, often offering full pay or a percentage of normal pay for a set period. These terms vary and form part of the employment contract. Employees should check their contract and handbook to understand both statutory and contractual entitlements.

Contractual schemes may cover waiting days or provide pay from the first day of sickness, unlike SSP's waiting‑day structure. Enhanced terms cannot reduce statutory minimum rights, but they supplement them.

8. Practical Issues and Common Questions

8.1 Part‑Time and Variable Hours

Part‑time workers and those with irregular hours qualify for SSP if they meet the eligibility criteria. The SSP rate applies to qualifying days based on normal working patterns.

8.2 Employment Status Confusion

Workers taxed through PAYE are typically eligible; self‑employed individuals and some irregular workers taxed via self‑assessment do not qualify for SSP. Eligibility depends on employment status for tax purposes.

8.3 Impact of Reform

Proposed reforms to statutory sick pay aim to expand eligibility and remove waiting days, potentially extending entitlements from day one of sickness and including many low‑paid workers previously excluded. These reforms are under legislative consideration and will affect future SSP rights when implemented.

Summary

Statutory sick pay and statutory sick leave provide essential financial support and legal protection for employees in England and Wales who are unable to work due to illness. SSP is payable by the employer at a statutory weekly rate for up to 28 weeks, subject to eligibility criteria including employment status, earnings threshold, sickness duration and notification requirements. Employees may supplement SSP with contractual sick pay where their employer offers enhanced arrangements. When SSP is denied or ends, form SSP1 supports benefit claims, and dispute mechanisms with HMRC exist. Understanding these legal requirements helps employees protect their rights and enables employers to fulfil statutory obligations correctly.