Notice Pay, Sick Leave and Resignation: Why Employers Need to Check the Detail

When an employee resigns while they are off sick, it can feel as though the position should be simple.

They have resigned, they are not coming back, and if they are self-certifying as unfit for work, they will receive Statutory Sick Pay.

However, notice pay during sickness absence is one of those areas where the law does not always follow common sense.

We saw a good example of this recently. An apprentice resigned on a Monday, gave one week’s notice, and said she would not be returning to work because of her mental health. Her contract required her to give six weeks’ notice, but she had less than 12 months’ service and only gave one week. On the face of it, the employer’s assumption was that she was self-certifying for the week and would receive SSP for that period.

From 6 April 2026, SSP is payable from the first day of sickness absence. The weekly rate is £123.25, or 80% of the employee’s average weekly earnings if lower. So, for many employees, a full week of sickness absence during notice will mean SSP of £123.25.

But employers still need to pause before confirming the final pay position.

The “quirky” rules on notice pay during sickness sit in the Employment Rights Act 1996. The key issue is whether the notice period is the statutory minimum, or less than one week more than the statutory minimum, or whether the contractual notice period is at least one week more than the statutory minimum.

Where an employer gives notice to an employee on sick leave, and the notice period is the statutory minimum, or not more than one week longer, full pay may be due during notice. But where the contractual notice period is at least one week more than the statutory minimum, the employee may only be entitled to their sick pay entitlement.

The same issue can arise where the employee resigns. Even though an employee only has to give the notice required by their contract, the employer still needs to check what notice the employer would have had to give. In this example, because the apprentice had less than 12 months’ service, her statutory minimum notice entitlement from the employer would have been one week. However, her contract gave her six weeks’ notice. That means the contractual notice period was at least one week more than the statutory minimum.

As a result, if there is no enhanced sick pay and she is genuinely absent due to sickness during that final week, SSP is likely to be the correct payment, rather than full pay.

This may feel strange, particularly where the employee has not given the full contractual notice required of them. However, the notice pay rules still need to be checked carefully before payroll is processed.

The practical message is simple: do not guess notice pay during sickness absence. Check the contract, check statutory notice, check sick pay, then confirm the final payment. If in any doubt, please reach out to us here at Redwing Solutions on 01527 909436

For any further information about sick leave and SSP, visit our Knowledge Centre and search the word ‘sickness’