The Mystery Number

It’s a staple of TV mysteries – the cryptic number that may (or may not) be significant to the plot. For example, ‘119’ in the new series of Twin Peaks; ‘Counting down from 730’ in Buffy or the mysterious number sequence (4,8,15,16, 23, 42) in Lost.

In employment law, we have our own mystery number: 87(4)

To be more precise, it refers to section 87(4) of the Employment Rights Act 1996, and deals with notice periods.

As most employers are aware, if you dismiss an employee, then in the majority of cases they are entitled to a period of notice. That period of notice is the longer of the minimum period laid down in the Employment Rights Act – sometimes known as Statutory Notice – or what is written in the individual’s employment contract.  During the notice period, the individual is entitled to their normal pay.

All pretty straightforward. But, if the individual is unable to work during their notice period, do they receive full pay or the pay that they are entitled to while off sick (Statutory Sick Pay – or in some cases no pay – for example)? This is where our mysterious clause kicks in.

Under 87(4). If someone has a contractual notice period that is 1 week or longer than their period of statutory notice, then the employer can legally pay sick pay rather than normal pay during notice.

So, an employee whose contractual notice is 13 weeks, but whose statutory notice is 8 weeks, would not be entitled to receive their normal pay during notice. But an employee whose contractual notice is 2 months (which is roughly 8.5 weeks) but whose statutory notice is 8 weeks would.  Fair? Not really. Confusing? Yes. The sort of thing that is likely to inadvertently trip up employers? Definitely!

Why does this rule exist? That’s the mystery. While many employment law rules, however arcane or apparently illogical, can be explained by some historic circumstance or rationale, the reason for 87(4) appears to baffle many. Unless of course you know differently (in which case please use the comments section below!)

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