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Kasare, Solicitor
Category: Law
Satisfied Customers: 1301
Experience:  Solicitor, 10 yrs plus experience in civil litigation, employment and family law
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I have an employee who I was going to sack however they signed

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I have an employee who I was going to sack however they signed off sick last Wednesday..Do I have to pay sick pay? They were on a 3 month trial which is up on the 14th, what should I do?
Hi thank you for your question, I will assist you with this.

Do you have a formal contract of employment and does this refer to sick pay?

Customer: replied 3 years ago.

No there is no formal contract

Ok, so what do you normally pay staff if they are off sick? If there is no company sick pay then you would have to look at Statutory Sick Pay (SSP). This is payable from the 4th day of sick leave and can be up to a maximum 28 weeks.

There are certain rules for an employee to be eligible for SSP, to qualify they must:

1. Be classed as an employee and have done some work for you;
2. Have been ill for at least 4 days in a row (including non-working days);
3. Earn at least £111 (before tax) per week; and
4. Tell you they are sick and provide you with a medical certificate within the time limit set by the company or within 7 days if you don’t have one.

An employee still qualifies for SSP even if they are a relatively new employee with less than 8 weeks paid service. Therefore you are going to be liable to pay SSP (which is currently £87.55 per week) up to a maximum of 28 weeks.

With regards ***** ***** position re terminating the employment, do you not believe they will be back in work before the end of the probationary period?

If not, you can still terminate this employee and that dismissal will be fair provided the employer has a fair reason and acts reasonably by following the correct procedure.

The reason for this process is to prevent an employee presenting a claim for unfair dismissal. However, your employee would be unable to bring a claim for unfair dismissal given their period of employment is less than the qualifying period for such a claim.

In the circumstances you could simply write to the employee to inform them that they have failed their probationary period and you are therefore terminating their contract - you will have to pay the contractual or statutory notice period.

However, it is always wise to follow a standard procedure to prevent any possible criticism being levied against the company.

To dismiss fairly it is normally necessary for an employee to be invited to a meeting. Whilst the employee may be unable to attend, due to the illness, this should still be done and as the employer you should consider alternatives such as:-

1. Postponing the meeting if the employee is likely to be well enough to attend a meeting in the near future.
2. Arranging a home visit to meet at the employee’s home (this would normally be presented as an option to the employee)
3. Allowing the employee to send someone on their behalf to attend the meeting
4. Conducting the meeting by way of a telephone call.

Once this has been done, you would terminate your employee's contract and your obligation for SSP will cease.

If you have any further questions, please ask.
Customer: replied 3 years ago.

Does this mean if I terminate thier contract, even if I do all of the above, they can still take me to a tribunal?

No, they do not have the required length of service for an unfair dismissal claim (provided of course the dismissal is not automatically unfair - this is for termination as a result of discrimination i.e. sex, maternity etc).

But if you do not pay their notice pay they could claim for wrongful dismissal (i.e. breach of contract for failing to pay notice pay).
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