What rights do I have to payment during sickness?

What you get paid if you're ill will depend on what is in your contract of employment. Sometimes contracts include a clear written term providing for full pay for a specified period, followed by reduced pay for a further period, subject to conditions on reporting the sickness absence.

If you have a contractual right to sick pay, your employer must pay it, as long as you follow all the rules in your contract of employment, for example as to notice and evidence of your sickness (usually GP certificates). Make sure you follow these carefully, so as not to jeopardise your sick pay entitlement.

Where a union is recognised, sick pay has usually been negotiated with the trade union and your contractual entitlement will be set out in a collective agreement. Ask your union rep if you are unsure of your rights to sick pay.

Especially in non-unionised workplaces, it is not unusual for the contract of employment to state, for example, that contractual sick pay is paid “in the discretion of the employer”. Even if the contract contains wording like this, your employer must still pay the statutory minimum sick pay. And your employer must not exercise any discretion irrationally or arbitrarily.

When deciding whether or not to pay discretionary sick pay, your employer must not engage in discrimination, or victimisation.

In addition, your employer must not breach the fundamental duty of trust and confidence owed to all employees.

For all these reasons, most large employers, especially where unions are recognised, prefer to negotiate clear rules that state when sick pay is and isn’t going to be paid.

If the contract does not contain any written terms about sick pay, the courts could, in some circumstances, imply a term giving you a contractual right to sick pay. Otherwise your employer is required to pay sick pay under the statutory scheme. This is called 'statutory sick pay' (SSP) and is payable, subject to qualifying conditions under the National Insurance contributions scheme, for up to 28 weeks.

In any event, employees must be told what the sick pay arrangements are as part of the written statement of employment particulars.

If you don't have any contractual sick pay entitlement, and don't qualify for SSP, you may be able to claim income support or employment and support allowance (ESA) (which is replacing incapacity benefit). For further information on these, visit Jobcentre Plus.

You can find more information in our Sick Pay section.

Note: This content is provided as general background information and should not be taken as legal advice or financial advice for your particular situation. Make sure to get individual advice on your case from your union, a source on our free help page or an independent financial advisor before taking any action.