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Classic employment traps – sick pay and notice

16 November 2006

A classic trap arises when an employee is given notice by his employer (lawfully, of course, and after taking legal advice) but then signs off sick.

Employers need to tread carefully when considering issues of sick pay and notice – particularly in respect of less senior workers who tend to have shorter contractual notice periods. A classic trap arises when an employee is given notice by his employer (lawfully, of course, and after taking legal advice) but then signs off sick.

If a worker’s contract entitles him to receive only a week’s notice for every year’s service (ie the minimum statutory requirement) and no salary during sickness absence, then the employer may be obliged to pay full salary if the employee goes off sick after being given notice.

Because the employee’s contractual notice does not exceed his statutory notice entitlement by at least a week, he is entitled to be paid full salary for his period of sickness – assuming he is on sick leave for the period of his notice.

One of our employment lawyers commented: “Many employers have been caught out by this little bit of small print. The only way to guard against it is to ensure that staff are entitled to more contractual notice than statutory notice, by at least a week.

As always, if you need commercial and pragmatic legal advice, we’re here to help so please get in touch.

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Matthew Clayton MA LLM (Cantab), CIPP/E
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Mathew Clayton
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