There are certain criteria that must be satisfied in order to be eligible for statutory sick pay (SSP). However, when it comes to non-executive directors, the requirement for the individual to be an 'employee' is likely to be the most immediately relevant. A person appointed as a director of a company is an office-holder but not by virtue of that appointment alone, also an employee of the company. It will boil down to a question of fact whether a director is an employee, or a worker, for the purposes of employment rights, taking into account the relevant statutory definitions.

Unfortunately, there is no legal definition of ‘non-executive director’ but such role is usually taken to mean a director that is not engaged in the day-to-day management of the organisation but is involved in policymaking and planning exercises.

It is most likely that a non-executive director will not usually fall within the definition of ‘employee’ but may fall within the definition of a ‘worker’. Such 'workers’ do not normally qualify for SSP.

Ultimately, whether or not a non-executive director qualifies for SSP will depend on their particular circumstances. If the non-executive director is in receipt of earnings arising from their office then they may qualify for SSP since they would be classed as an employed earner. However, if the fee received does not arise from their office as director, they are likely to be taxed on a self-employed basis rather than an employed earner, and will consequently not be entitled to SSP.