Statutory sick pay?

[johnisworried]

Hello,

I recently worked with a new firm for five weeks before being taken ill.

Got a sick note to prove my illness, and filled out my SSP form.

I earned well over the minimum per week for eight weeks, despite only getting money for five of them. I was told that I was to entitled to SSP as I had "not been with the company long enough before going off sick." This despite my resigning as I didn't want to sponge off the company. I am owed four weeks SSP according to my calculations.

I spoke to a lady at the DWP. She told me that my entitlement should be based on my eight weeks prior work, needing to equal at least £108 per week, and, as I’d not worked eight weeks, said calculation should be based on the earnings made in the weeks I had worked, divisible by eight, or a calculation should be based on "my contracted hours."

What are my rights here?

[anamenottaken]

Originally Posted by johnisworried

Hello,

I recently worked with a new firm for five weeks before being taken ill.

Got a sick note to prove my illness, and filled out my SSP form.

I earned well over the minimum per week for eight weeks, despite only getting money for five of them. I was told that I was to entitled to SSP as I had "not been with the company long enough before going off sick." This despite my resigning as I didn't want to sponge off the company. I am owed four weeks SSP according to my calculations.

I spoke to a lady at the DWP. She told me that my entitlement should be based on my eight weeks prior work, needing to equal at least £108 per week, and, as I’d not worked eight weeks, said calculation should be based on the earnings made in the weeks I had worked, divisible by eight, or a calculation should be based on "my contracted hours."

What are my rights here?

The "lady at the DWP" was wrong.
If you have worked for fewer than eight weeks total earnings are divided by the number of weeks you have worked, not by eight.

From HMRC's Helpsheet E14

New employees who have not had eight weeks earnings yet

Employees who have not worked for you for long enough for the normal AWE rules to apply, or have worked for you before in a previous contract which doesn’t link with the current contract, fall into two groups.
Employees who have not received:
• payments covering at least eight weeks at the time the PIW begins, and
• any payments at the time the PIW begins.

Earnings do not cover eight weeks

Where the last normal payday before the PIW has been established but previous paydays covering at least eight weeks’ pay have not, regulations provide for an employee’s AWE to be calculated differently. In these circumstances calculate it using the period represented by all the earnings, paid under the contract before the first day of sick absence, as the ‘relevant period’.
The method depends on whether the employee has or has not been paid for an exact number of weeks.

[johnisworried]

So I am entitled but the business in question is still refusing to pay me. What are my options peeps?

[Uncertain]

As I understand it, you are saying you have resigned and the money that is owed is roughly three weeks SSP?

Did you take any paid holiday from the firm (or did they pay you for that after you left)?

You accrue holiday all the time you were employed, including whilst you were off sick. In round figures this is one day for every two weeks worked (actually slightly over). So, if I understand you correctly, you are also owed over four days full pay for this.

What you should do is write to the firm setting out clearly what you are owed and ask for payment by certain date (a short but reasonable time, say two weeks).

If they refuse or don't reply send a further "letter before action" giving them a new date failing which you will begin legal action without further notice.

If need be you file an employment tribunal claim for unlawful deduction of wages. You can do this free of charge online.

Note, you must file the claim within three months (less one day) of leaving so don't be strung along.

If you are out of time you can also make this claim via the county court where the time limit is six years but you would have to pay a fee up front (which would be added to any award assuming you win).

[Uncertain]

Just to add......

It is also possible that you should have been paid in full for your notice period when you resigned.

The rules for this when you are off sick are complicated. If you can tell us exactly what your contract says about notice (and what notice you actually gave) we can advise further.

Holiday also continued to accrue during the notice period, whether paid or not.

[johnisworried]

I had to give one weeks notice.

They told me regarding holiday pay that I accrued it for every one months work, so as I was short by one day of two months working there before I resigned, I was only entitled to one months holiday pay?

I'm too late for the three months tribunal, will have to take Court action...

Thanks for your advice!

[Uncertain]

Well your firm didn't make a very good job of this!

By law you accrue holiday continuously, not in monthly increments. So, you were entitled to be paid for all holiday accrued right up to the end of your notice period.

As I understand it, you are also entitled to full pay, not just SSP, for the week's notice period.

See here.....

http://www.willans.co.uk/files/uploa...sick%20pay.pdf

I suggest you write to the firm, setting out clearly everything that is owed and ask for payment by a particular date (perhaps a month, no more) failing which you will take legal action without further notice.

It is worth checking you house insurance as it may cover you for legal expenses. Failing this you can simply make a small claims court claim yourself online. There is a fee to pay up front but this will be added to the award (assuming you win)!

[johnisworried]

But does that mean I am entitled to full day for the weeks notice I gave, or just SSP?

Bear in mind I was off sick for three weeks before I gave in my weeks notice.

Thanks again friend, you are a star Made me really happy!

[Uncertain]

As I understand it you are entitled to full pay for the notice week, not just SSP. As I said earlier this is slightly complex and I am getting a bit out of touch.

I'll send a PM to one of the lawyers who posts here. Hopefully she will have a moment to comment.

[SarEl]

Assuming all the information from the OP is accurate, then the advice seems to be sound - which is why I hadn't commented previously.

[Uncertain]

Thanks for that confirmation SarEl.

OP, what I would suggest you do next depends on your assessment of the employer and whether you have access to free legal help. If you have I would contact them and let them deal with it for you. If not then proceed as follows.

It may be that they simply don't understand the rules (it is not uncommon) and when they do they will pay up.

Equally they may know perfectly well and are just trying it on in the hope you will go away.

If you think the first applies then I would write a careful, polite letter setting out the results of your research and your calculation of what you are owed. However do still say if you have not be paid by XX/XX/XX you will have to take legal action. It may be this will be all you need.

If you feel the second applies then simply set out what you are owed and demand payment within 21 days (name a date) failing which you will begin legal action without further notice.

Best of luck!