Employer refusing statutory sick pay

Statutory Sick Pay: When Your Employer Can and Cannot Refuse

Legal position:

Statutory sick pay (SSP) is a legal entitlement under the Social Security Contributions and Benefits Act 1992. Your employer cannot simply refuse to pay it because they do not want to. However, there are specific circumstances in which you may not qualify, and in those cases your employer is entitled to say no.

Who qualifies:

To be entitled to SSP you must meet all of the following conditions:

1. You are classed as an employee (not genuinely self-employed).
2. You have done some work under your contract of employment.
3. You are sick for at least four consecutive days (including non-working days). This is known as a "period of incapacity for work".
4. You earn at least the lower earnings limit for National Insurance contributions. For the 2024/25 tax year this is £123 per week on average.
5. You have notified your employer of your sickness within their required timescale, or within seven days if they have no specific rule.
6. You have provided evidence of incapacity if asked. For the first seven days this is usually a self-certification. After seven days your employer can require a fit note from your doctor.

When your employer can lawfully refuse SSP:

Your employer can refuse SSP if you do not meet the qualifying conditions above. The most common lawful reasons for refusal include:

1. You earn below the lower earnings limit.
2. Your sickness lasted fewer than four days in a row.
3. You are within the first "waiting days" of a period of incapacity. SSP is not payable for the first three qualifying days (days you would normally work).
4. You have already received the maximum 28 weeks of SSP in a single period of entitlement or a series of linked periods.
5. You are receiving Statutory Maternity Pay or Maternity Allowance.
6. You are in a trade dispute at your place of work (unless you have no direct interest in it).
7. You have been taken into legal custody.
8. You have not complied with your employer's notification or evidence requirements without good reason.
9. Your contract of employment has ended.

What your employer cannot do:

Your employer cannot refuse SSP simply because they are a small business, because they do not have a sick pay scheme, because they think you are not genuinely ill (unless they have proper medical evidence to that effect), or because it is inconvenient. SSP is a statutory obligation, not a discretionary benefit.

If your employer refuses SSP:

If your employer refuses to pay SSP, they must give you a written explanation on form SSP1 (or equivalent written notice). This form tells you why they say you do not qualify and allows you to challenge the decision. The practical steps are:

1. Ask your employer in writing to explain why SSP is being refused.
2. If they issue an SSP1 or equivalent notice, check whether the reason given is one of the lawful grounds above.
3. If you believe the refusal is wrong, you can ask HMRC to make a formal decision. You can contact HMRC's Statutory Payment Disputes Team. The number is on the GOV.UK website.
4. HMRC will investigate and can direct your employer to pay SSP if the refusal was unlawful.
5. If your employer still does not pay after an HMRC decision, HMRC can enforce it. You may also have a claim for unlawful deduction from wages under section 13 of the Employment Rights Act 1996, which you can bring in the employment tribunal.

If you do not qualify for SSP:

If you genuinely do not meet the conditions, you may be able to claim Employment and Support Allowance (ESA) or Universal Credit instead. The SSP1 form from your employer is used as evidence when making a benefits claim.

Important practical note:

Many employers also offer contractual sick pay on top of SSP, which may be more generous. Check your contract of employment and any staff handbook. If your employer has a contractual scheme, they must honour its terms as well as paying SSP.

If you can share the specific reason your employer has given for the refusal, I can give you more targeted advice on whether it is lawful and what to do next.