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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44919
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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My partner has been off work due to clinical depression but

Customer Question

My partner has been off work due to clinical depression but has been constantly phoned and emailed from employer which I feel has delayed his return to work. They firstly insisted on taking back the company car whilst he has still be under contract and it was only because we stood our ground they backtracked and said we were right.

Partner resigned on 11 June and was told he would be paid one months salary in lieu of notice to save him being at home on half pay. The same day an email was received saying they could not do that and therefore he will only be entitled to the SSP until 11 July.

Can the employer do this? Please help. Thank you
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. What does his contract say about sick pay?

JACUSTOMER-jssu7vq7- :

Hello Ben, I'm not sure what the contract says at the moment as partner is at friends house. What should it say ?

Ben Jones :

Well there are many things it could say but you need to check whether he is entitled to anything on top of SSP for periods of sick leave

JACUSTOMER-jssu7vq7- :

Thank you, XXXXX XXXXX check it later and can I come back to you tomorrow please. He has been receiving SSP and this went to half pay from 18 May.

Ben Jones :

ok no problem just get back to me whenever you wish, thanks

JACUSTOMER-jssu7vq7- :

Thank you will be in touch tomorrow.

Ben Jones :

ok thank you

JACUSTOMER-jssu7vq7- :

I cannot access the rating as it says you are still answering my question

Ben Jones :

you can rate when I have provided my advice tomorrow, thanks

JACUSTOMER-jssu7vq7- :

Dear Ben Jones

JACUSTOMER-jssu7vq7- :

Dear Ben Jones Further to our discussion last night.

JACUSTOMER-jssu7vq7- :

Dear Ben Jones Further to our discussion last night re sickness pay and partners employer renaging on paying one months salary in lieu of notice. The Contract under Sickness Asence reads " During the first month in any 12 month period SSP will be made up to basic pay and after that for the next two months to half pay. Half pay was paid from 18 May. Contract of employment began from 18 June 2012. Our concern is that the months notice in lieu of pay which was suggested by employer and then taken back means he will not pay the salary and just SSP - is he allowed to do this? Holiday entitlement is 25 days from 1 January so this year's holiday although none has been taken will be on a pro rata basis - i..e to 11 July 2013 when the employer said he is no longer employed. If you can help on this we would be extremely grateful. Thank you.

Ben Jones :

Hello again, it appears that he is entitled to some sick pay, which decreases with time until it just becomes SSP. It appears that the issue here is whether he is entitled to be paid his notice period at his normal rate or at SSP rates.


 


Unless the contract states otherwise, he would have the same rights during notice as he would have had if he was not under notice. Therefore, if he is on sick leave during the notice period, he may only have the right to SSP if he has already used up his entitlement to sick pay.


 


There is one exception, which can be somewhat confusing, so I will try and explain it clearly:



  • If the employer is giving notice to the employee and this notice is only the minimum statutory entitlement and. This is 1 week for every full year of service, up to a maximum of 12. So if he has been there for 2 years and is only entitled to 2 weeks notice then that would be his minimum statutory entitlement. In these circumstances, the employee is entitled to full pay for their statutory notice period, even if they have exhausted their right to contractual sick pay and/or SSP.

  • If the employee is giving notice, which is the situation here, he may be entitled to receive pay for the first week of his notice period only. This will depend on what notice his employer would have been required to give him. To qualify, this notice must be at least 1 week longer than the statutory minimum notice he was entitled to. Using the same example as above, if his minimum statutory notice period was 2 weeks but his contract allowed for 4 weeks notice, that would be at least 1 week longer than his minimum entitlement and he can expect to be paid his normal salary for the first week only, with the remainder at his current rates of his pay.


 


I hope the above examples are clear but please let me know if you need any further clarification.

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