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Overview
All employees, irrespective of age, are entitled to claim statutory sick pay as long as they have average earnings of at least £118 per week (from 6 April 2019 - rising to £120 per week from 6 April 2020). For SSP purposes an 'employee' is classed as someone who attracts liability for Class 1 National Insurance Contributions, or would do so if his or her income was high enough.
 
Eligibility begins on the first day of employment - although the employee must have actually started work - on a contract that is to last for at least three months.
 
Married women and widows who pay reduced NICs may be eligible for SSP if they meet the qualifying conditions.

Key points

  • All employees earning at least the National Insurance Lower Earnings Limit, which is £118 per week gross (from 6 April 2019 - rising to £120 per week from 6 April 2020) are eligible for SSP for up to a maximum of 28 weeks. 'Employees' are defined as those liable for Class 1 NICs or those who would be liable if their income was high enough.
  • For the tax year beginning 6 April 2019 statutory sick pay rate will be £94.25 a week and is set to increase to £95.85 per week from 6 April 2020 (see our ‘Statutory rates’ page for historic rates).
  • Employers can opt out of SSP if they operate their own scheme (contractual sick pay). Payments must be at least equal to what would be received under the statutory provisions.
  • Details of the contractual sick pay scheme must be included in employees' written particulars of employment or employees can be referred to other sources of information such as company handbooks.
  • Employers operating their own arrangements must keep records of qualifying periods of sickness.
  • Decisions on long-term ill-health absentees will have to comply with the Equality Act 2010.
  • Employers are liable for the payment of SSP. Any payments are subject to PAYE, National Insurance and any other usual deductions.
  • SSP is paid only from the fourth consecutive qualifying day of sickness. Absence from work from this day is known as a period of incapacity (PIW). A PIW is the period of time during which an employee is incapable of work.
  • All days including weekends, holidays and days not normally worked are taken into account in calculating the PIW. A PIW which occurs within 56 days of a previous PIW will be linked, counting as one period of sickness.
  • Employees with at least one month's continuous employment who are suspended from work on medical grounds are entitled to remuneration for up to a maximum of 26 weeks.
  • Special rules apply to pregnant employees suspended from work on medical grounds.

Note: the Percentage Threshold Scheme, which allowed employers to recover some or all of the SSP paid to employees, has been abolished but employers have until the end of the tax year 2015-16 to reclaim SSP paid before the end of the tax year 2013-14.

Recent developments

Consultation examining changes to SSP

Following recommendations made in the 2017 Taylor Review, the government has released a consultation looking at making changes to the current statutory sick pay (SSP) scheme.

These changes include removing the need for individuals to achieve the lower earnings level (currently set at £118 per week) before they become eligible for SSP and simplifying rules aorund qualifying days. To help provide more employees with support, the consultation is asking whether a right to request work(place) modification for those not covered by the duty to make reasonable adjustments under the Equality Act 2010 will help encourage employers to take action to return employees to work.

The consultation closed in October 2019. More information can be found in our news article.

Government consults on introducing single body to enforce employment rights

Following a proposal contained in the Good Work Plan, the Department for Business, Energy and Industrial Strategy (BEIS) has released a consultation examining whether a single enforcement body should be introduced for employment rights and obligations.

A single enforcement body will look to carry out enforcement which is currently undertaken by others, including holiday pay, the minimum wage (currently enforced by HMRC) and agency worker rights (currently enforced by the Employment Agency Standards Inspectorate).

The consultation asks interested parties to submit their views on the remit and enforcement powers of this body, as well as asking whether it should carry out enforcement of statutory sick pay and unpaid tribunal awards. More information can be found in our news article.

Statutory sick pay and the coronavirus

The government announced on 4 March 2020 that emergency legislation would be introduced for the payment of statutory sick pay (SSP) to employees with the coronavirus. They will be entitled to receive SSP from day one, not day four, of their illness. It is not yet confirmed when this will come into force. 

From 13 March 2020, all those who are advised to self-isolate due to the coronavirus outbreak are entitled to be paid SSP, provided they meet the other qualifications. Currently, this is expected to last for a period of eight months. 

 

Employers can choose to opt out of the statutory sick pay (SSP) scheme but only if they operate their own arrangement, such as continuation of wages or payment of occupational sick pay at or above the SSP rate. Details of the organisation's sickness provisions should be included in employees' written particulars of employment or in a company handbook.
 
The contract must specify the period of time for which contractual sick pay will be paid. Employers may choose to attach a qualifying clause for eligibility. The written statement should also include details of how an employee should give notification of their sickness, and to whom that notice should be given.
 
Medical evidence will normally be required to determine entitlement. Self-certification normally operates for the first seven days of incapacity, after which GP's certificates are usually required. The written statement of particulars could also state the company policy on medical examinations and what might happen should the employee be unable to return to his or her previous role after a period of sickness absence.
 
Employers must not treat part-time workers less favourably than comparable full-time employees. Equal treatment must extend to the calculation and duration of sick pay and any qualifying period.
 
Non-payment of SSP is covered by the Employment Rights Act 1996 and, therefore, may be an unlawful deduction from wages.
Employers operating their own sick pay schemes have discretion to decide what to offer and to whom, subject to terms being at least as favourable as SSP. In practice, contractual sick pay may vary from job to job and employers must tread carefully to avoid falling foul of discrimination and equality legislation.
 
Employees who satisfy the qualifying conditions for SSP can claim statutory payment for any periods of sickness absence which are not covered by the in-house scheme, or where the scheme pays less than the SSP rate.
 
Basic records, including the amounts of sick pay paid, will still need to be kept for HMRC purposes.
 
Where an employee has been absent for 28 weeks, the employer must issue form SSP1 or an in-house computerised equivalent, enabling the employee to claim Incapacity Benefit (Employment and Support Allowance after March 2014).
 
As part of a contractual sick pay scheme, permanent health insurance (PHI) may be provided to pay employees who are unable to work as a result of long-term sickness or injury, and who have exhausted their occupational sick pay entitlements.
 
Under a PHI scheme, employees with long-term incapacity generally receive a proportion of their salary. The duration of PHI payments will depend on whether or not the employee is likely to return to work, and when.

Employers are liable for the payment of statutory sick pay (SSP) to eligible employees. The current rate is £94.25 per week (from 6 April 2019 - see our ‘Statutory rates’ page for historic rates). SSP is calculated daily by dividing the weekly rate by the number of qualifying days.

From 13 March 2020, all those who are advised to self-isolate due to the coronavirus outbreak are entitled to be paid statutory sick pay. Please refer to our section on managing coronavirus at work for more details. 

A period of incapacity for work (PIW) begins when an employee has been incapable of work for at least four consecutive 'qualifying days'. Qualifying days are those days the employee is normally contracted to work, or an agreed working pattern.
 
Employees are entitled to up to 28 weeks' SSP in any PIW, but only in respect of qualifying days. For the purposes of calculating the PIW, weekends, holidays and days not normally worked are included.
 
SSP is not payable for the first three qualifying days of sickness absence (known as 'waiting days').
 
Any further period of sickness absence of at least four days within 56 days of the first is treated as part of the same PIW. Employers keeping manual records should highlight the 56th day after the end of a PIW to help them determine whether one PIW and subsequent periods of sickness absence are linked.
SSP Regulations require certification of sickness from the fourth day of incapacity. Self-certification is allowable for the first seven days (HMRC produces a form for employees (SC2), although its use is optional).
 
An SSP1 form must be completed if an employee is sick for four or more days and is not entitled to SSP from his or her employer, or where the entitlement to SSP has been exhausted but he or she is still sick (normally 28 weeks).
 
Employees not entitled to SSP include:
  • individuals who have already received their full 28-week limit from a previous employer
  • employees whose average weekly earnings over the relevant period are below the current lower level for National Insurance purposes - £118 per week (from 6 April 2019)
  • those involved in a trade dispute, such as a strike or lockout
  • employees working outside the UK and for whom the employer is not liable to pay Class 1 NICs
  • pregnant women in the following situations:
  1. where a woman is entitled to receive Statutory Maternity Pay (SMP) or Maternity Allowance (MA) she is not eligible to also receive SSP for the 39 weeks during which SMP or MA is payable
  2. a woman who is not entitled to SMP or MA (and who is not already receiving SSP) cannot be paid SSP for 18 weeks from the earlier of the following two dates:
  • the beginning of the week in which her baby is born
  • the beginning of the week in which she is off work because of pregnancy-related sickness (if this is within four weeks of her baby being due).
An SSP2 (or SSP record sheet) is available from HMRC (see link above) to help employers record dates of relevant sickness, PIWs and all SSP payments. Employees whose employment terminates must be issued with form SSP1 (L) if they have received SSP in the last eight weeks of employment.
Eligible employers may recover some of the SSP paid out to employees under the Percentage Threshold Scheme. To determine eligibility, the following process must be followed:
1. Deduct any contracted-out NIC rebate for that month from the total gross Class 1 NIC liability for the same period and multiply by 13 per cent, rounding down any fractions of a penny.
2. If the total SSP paid out for the month is greater than the figure in step 1, the employer can claim back the difference between the two amounts.
 
The calculation needs to be repeated every month. Employers who pay their tax and NICs quarterly can claim any SSP rebate over the same period, although they must still do a monthly calculation. Any recovered SSP should be recorded in the Employer's Annual Tax Return (currently form P14).
 
Note that the Percentage Threshold Scheme is abolished on the 6 April 2014. Employers record-keeping requirements associated with the scheme are also abolished on this date. Employers will have until the end of the tax year 2015-16 to reclaim SSP paid before the end of the tax year 2013-14. Employers will still have to maintain SSP records for PAYE purposes, and must still be able to produce records showing they have met their SSP obligations if required to do so by HMRC.
Each case that involves terminating employment on ill-health must be assessed on its own circumstances and should balance the needs of the organisation against those of the long-term absentee. Ill-health retirement should be contemplated only after redeployment or some other adjustment has been considered and medical opinion confirms there is little possibility of the employee returning to work. Both parties need to mutually agree the retirement option, however.
 
 
Employees with at least one month's continuous employment who are suspended from work on medical grounds are entitled to remuneration for up to 26 weeks.
 
Suspension must be related to either a requirement imposed by specific health and safety provisions, such as the legislation governing exposure to hazardous substances and processes, or a recommendation contained in a Code of Practice approved under Section 16 of the Health and Safety at Work Act.
 
This right refers to situations in which the employer's business is affected by specific health and safety legislation and has nothing to do with the individual employees' health. No payment is made where employees refuse a reasonable request to perform alternative duties.
 
Medical suspension pay is calculated based on the employee's normal week's pay. The 'calculation date' for these purposes is the day before the suspension began. Where actual pay is less than a normal week's pay, the employer has to make up the difference.
Special rules govern pregnant employees (or those who have given birth within the past six months or are breast-feeding) whose health (or whose baby's health) might be at risk as a result of factors in the workplace. An example of this is where a woman develops an allergy to a substance she works with.
 
Employers must limit this risk by adjusting the employee's working conditions or hours, offer her other suitable work or suspend her until the risk has been removed.
 
Provided the woman has been in her job for at least one month and has not unreasonably refused suitable alternative work, she is entitled to be paid for up to 26 weeks during the suspension. The statutory right is to receive normal wages or salary throughout the suspension but the employment contract might contain more favourable terms.
Employees who fall sick directly before, or during, a period of booked holiday leave are entitled, on request, to take the period booked as holiday leave as sickness absence and then rebook their holiday leave at a later date. If it is not possible to reschedule the holiday leave during the same holiday year, the employer must allow it to be carried forward into the next holiday year. The amount of holiday leave carried forward is limited to the 20 days allowed by the European Working Time Directive.
 
Employees are required to notify the employer of their sickness absence following the usual sickness absence procedures.
 
Introduced on 8 September 2015, the Fit for Work scheme enabled employers to refer their employees directly to the government's Fit for Work referral service, without having to do this via the employee's GP. Further to government announcements at the end of 2017, this service will be removed during 2018. No new referrals may now be made to the scheme, although any employee who was referred before 15 December 2017 will still receive the full service available. The information below relates only to those employees referred before this date.
 
The employee had to have been, or was likely to be, off work for four weeks or more. Employees who consent to being referred to the service will be invited for a telephone assessment by a Fit for Work occupational health professional. The assessment aims to identify all potential obstacles preventing the employee from returning to work (including health, work and personal factors). Where appropriate, a ‘return to work plan’ will be agreed between the advisor and employee. The plan can be used as evidence of sickness absence in the same way as a GP's 'fit note'.
We operate a discretionary sick pay scheme. In the contract of employment the section relating to sick pay reads:
'There is no company sick pay scheme. If you are absent due to sickness any payment will be at the discretion of the management. Statutory Sick Pay will be paid in accordance with the government guidelines.'
 
In reality, what happens is that occasional days of sickness are not paid. However, if an employee has a major illness or operation they usually receive pay for the first three months. In the past five years I cannot find an example of anyone who has not received this payment for three months.
 
We have an employee who has been involved in a car accident and has had to have major surgery on a bad break of his leg. He is likely to be absent for around five months. However, the Managing Director had told this employee that he drove like a maniac on a number of occasions and had warned him that he would end up in an accident if he did not drive more carefully. Hence, the Managing Director is saying that no sick pay will be paid (the accident did not happen in work time and the employee was not driving a company vehicle). Is there any problem with refusing to pay sick pay?
Although the contract states that sick pay is discretionary, it appears that an approach to paying sick pay has developed through custom and practice. This means that it appears that an implied contractual term that sick pay will be paid for three months following a major illness or operation has developed.
 
Sagar v Ridehalgh and Son Ltd [1931] is a rather old case, but it explains the point. In this case the employee was a weaver. Deductions from wages were made if work did not meet the required quality standards. Sagar challenged these deductions, but was unsuccessful because the employer was able to demonstrate that the deductions had always been made in this industry.
 
A contract of employment cannot be varied without agreement. If this term has become part of the contract through custom and practice then the sick pay will have to be paid, unless agreement is reached with the employee not to pay the amount.

I run a small hotel. The housekeeping/cleaning staff are all employed on zero hours contracts and work different hours each week depending on how busy the hotel is. We pay £7 per hour and people tend to work between 6 and 30 hours per week. One of the cleaning staff has been off sick for the last two shifts, do I need to pay her sick pay?

The test here is not the number of hours worked, or the type of contract, but the earnings. At the rates you quote, an employee might earn between £42 and £210 per week. The point at which SSP must be paid is if an employee earns £116 or more per week, which is the point where they start to pay National Insurance. To calculate if the person is eligible, you need to look at their average earnings for the 8 weeks prior to the first day of sickness - if this exceeds £116 per week then they will be eligible for SSP. One other thing you need to do is to designate the employees’ qualifying days in a week – for example if you can call them in over any of the 7 days then this should be the period designated.

Our company services X ray equipment in hospitals. One of our technicians has just told us that she is pregnant and should not be working with such machinery. We don’t have any other work for her to do but do we need to find another role for her?

All employers must carry out a risk assessment for pregnant employees. If the result of this assessment is that there are aspects of their role that they cannot do for health reasons then the employer should attempt to redefine the role, for example by removing the risk areas, changing hours, or redeploying temporarily. If none of these are possible, then the employer may need to suspend the employee on the grounds of pregnancy. If she has been working for the employer for more than one month, and has not unreasonably refused alternative work, then she is entitled to full pay for 26 weeks (or until she starts maternity leave if sooner). The same rules also apply to women who have given birth within the last 6 months or who are still breast feeding.