Section 86 of the Employment Rights Act 1996 sets out the statutory minimum notice periods. These are one week where the employee has at least a month’s but less than two years’ continuous service, and one week for each year of continuous service, up to a maximum of 12 weeks, where the employee has at least two years’ service. For example, the statutory notice period for an employee with five and a half years’ service will be five weeks.

Section 88(1)(b) provides that where an employer is absent because of sickness or injury he or she should be paid full pay for the statutory minimum notice period. However, section 87(4) states that this does not apply where the notice to be given by the employer to terminate the contract is at least one week more than the statutory notice.

By way of an example, where the contractual notice period is one month, but the employee being dismissed while on long-term sick leave has just over seven years’ service, his or her statutory notice entitlement will be seven weeks, so this will be payable at the full rate.

However, where the contractual notice period is one month and the employee has three and a half years’ service, his or her statutory notice entitlement will be three weeks. The contractual notice period exceeds the statutory notice by at least one week, and there will be no obligation for it to be paid at the full rate.

This is something of an anomaly – if Parliament decided that an employee absent due to long-term sickness is entitled to a week’s pay for each week of the statutory minimum notice period, why should it have decided to remove the entitlement where the employee is entitled to contractual notice that just happens to be at least a week longer than the statutory minimum? What is clear though is that many employees whose contracts are terminated while on long-term sick leave and who have exhausted their entitlement to sick pay must receive full payment during their notice period.