An employee may become ill during a period of unpaid leave, be that a career break or sabbatical. In order to be eligible for statutory sick pay (‘SSP’) an employee must meet the following eligibility criteria:

• be an employee;
• be too ill to undertake any work under his contract of employment on any day for which he claims SSP;
• have at least four consecutive days' sick absence (including Sundays and Bank holidays) during which he/she is too ill to work i.e. a “period of incapacity for work”;
• average weekly earnings at or above £116 a week;
• notify his/her absence to his employer; and
• supply evidence of his/her incapacity.

Employers should have an unpaid leave policy in place that details whether an employee’s contract of employment will continue when on a period of unpaid leave – particularly during career breaks. If an employee’s contract has been terminated for the career break, the individual will have no right to SSP during the period of leave. However, I appreciate that this will be uncommon and that in most instances the employment contract will remain intact during a period of unpaid leave.

While there is no direct authority on payment of SSP when the employment contract is continuing during a period of unpaid leave, the following points should be considered.

Section 147 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 defines a period of incapacity for SSP purposes as:

“a day on which the employee concerned is incapable by reason of some specific disease or bodily or mental disablement of doing 'work which he can reasonably be expected to do under that contract'.”

Although an employee on unpaid leave cannot reasonably be expected to carry out work, this is not due to any disease, bodily or mental disablement but instead because they are on a period of leave. On this basis, it seems unlikely that an employee on unpaid leave would be entitled to SSP.

In any event, an employee on a career break is unlikely to satisfy the average weekly earnings threshold criteria for SSP.