I’ve been an employment lawyer for more years than I care to remember but there are still some areas of the law that don’t make any sense to me. One of them is notice pay during sickness absence.
If an employee has been off sick for a year and exhausted their entitlement to statutory or contractual sick pay, do they still get full pay during their notice period?
The answer lies in their contract. If their contract requires the employer to give notice which is at least a week more than their statutory minimum notice period, the employer does not need to pay them anything during the notice period. However, if the employee is only entitled to the statutory minimum notice the employer will have to pay them their full pay during this period.
So, take the example of an employee with 6 years’ service who has been off work for a year. Their statutory notice period is 6 weeks, but their contract requires the employer to give them 2 months’ notice. They will receive nothing during their notice period. However, if their contract limits the notice to the statutory 6 weeks, they will be entitled to receive their full pay for 6 weeks.
It’s always struck me as odd but it's a situation we are stuck with. Perhaps it is there to encourage employers to pay more than statutory minimum notice. Whatever the reason, it's worth remembering if you are negotiating an exit package with someone on long term sick leave.
Notice periods should be one of the main terms and conditions of employment and included in the employee's written statement