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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 £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 £120 per week gross 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 2020 statutory sick pay rate is £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.
  • Generally, 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

Statutory sick pay and the coronavirus

Last updated 04 November. 

As part of emergency legislation introduced by the Government in response to coronavirus, the entitlement to statutory sick pay (SSP) was extended. Originally designed for only those who were unfit for work through sickness or injury, SSP is now payable to those who:

  • are self-isolating with coronavirus symptoms though are not necessarily unfit for work
  • are self-isolating because someone they live with, or in their support bubble/extended household, has symptoms
  • have been advised by their GP or NHS to ‘shield’ -  Shielding has been ‘paused’ in England, Scotland and Wales but is to return from 5 November in England due to a new national lockdown 
  • have been in close recent contact with someone who has tested positive and received a notification to self-isolate from NHS test and trace;
  • have been advised by a registered medical professional that they will need to have an operation and that they will need to self-isolate for a period of up to 14 days prior to going into hospital.

In addition, a new Coronavirus Statutory Sick Pay Rebate Scheme was announced which would allow certain businesses to claim back SSP paid in certain circumstances.

Whilst the Government also advises a 14 day self-isolation period on return to the UK from countries which are not included on the travel corridor exemption list, no SSP is payable in this circumstance.

Shielding to return in England 

Shielding will re-commence from 5 November 2020 for those in England who are clinically extremely vulnerable. As before, letters will be distributed to all those affected. Those who need to shield are strongly advised to work from home and if they cannot, they should not go to work.

As before, those told to shield will be entitled to receive SSP again if they qualify. They can also be furloughed if they meet the criteria of the extended furlough scheme including if they were on the payroll on or before 30 October 2020.

People who live with people who are shielding can still go to work if they are one of the categories of people who can’t work from home. 

Please note - we are currently in the process of updating our information on shielding in the in-depth section of this content. 

NHS Test and Trace service

On 28 May 2020, the NHS test and trace service was launched in England and Scotland. The service will:

  • provide testing for anyone who has symptoms of coronavirus to find out if they have the virus
  • get in touch with anyone who has had a positive test result to help them share information about any close recent contacts they have had
  • alert those contacts, where necessary, and notify them they need to self-isolate to help stop the spread of the virus.  

The Government states that, by following instructions to self-isolate, people who have had close recent contact with someone with coronavirus will be protecting their family, friends, colleagues and other people around them, and will play a direct role in stopping the spread of the virus.

For more information, please refer to our 'in depth' section. 

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 £120 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.

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 £95.85 per week (from 6 April 2020 - 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'.

As part of emergency legislation introduced by the Government in response to coronavirus, the entitlement to statutory sick pay (SSP) was extended. Originally designed for only those who were unfit for work through sickness or injury, SSP is now payable to those who:

  • are self-isolating with coronavirus symptoms though are not necessarily unfit for work
  • are self-isolating because someone they live with, or in their support bubble/extended household, has symptoms
  • have been advised by their GP or NHS to ‘shield’ for a 12 week period. Shielding has been ‘paused’ in England, Scotland and Wales which means the Government is no longer advising people to shield. However, it remains possible that this advice could be re-instated, whether on a national or regional level;
  • have been in close recent contact with someone who has tested positive and received a notification to self-isolate from NHS test and trace;
  • have been advised by a registered medical professional that they will need to have an operation and that they will need to self-isolate for a period of up to 14 days prior to going into hospital.

In addition, a new Coronavirus Statutory Sick Pay Rebate Scheme was announced which would allow certain businesses to claim back SSP paid in certain circumstances.

Whilst the Government also advises a 14 day self-isolation period on return to the UK from countries which are not included on the travel corridor exemption list, no SSP is payable in this circumstance.

Scheme eligibility

Businesses eligible to use the Scheme are those which:

  • have a PAYE payroll scheme that was created and started on or before 28 February 2020
  • had fewer than 250 employees on 28 February 2020
  • are claiming for an employee who is eligible for SSP due to coronavirus.

Connected companies and charities can also use the scheme if their total combined number of PAYE employees was fewer than 250 on the 28 February 2020.

Specific eligibility criteria apply to the payment of SSP, including minimum average earnings of £120 per week and the requirement to be sick/self-isolating for a minimum period of 4 calendar days. It is important to note that SSP eligibility criteria was amended where it is paid due to coronavirus; waiting days are no longer needed and payment is due from day one, not day four.

Employees are entitled to SSP due to coronavirus if they are unable to work because they:

  • have coronavirus or have symptoms of it
  • are self-isolating because someone they live with has symptoms of coronavirus or because someone in their linked household/extended household group has symptoms. Linked households/extended household groups are permitted under relaxed lockdown rules, meaning that people in one household may create a bubble with another household and be treated as if they live in the same house e.g. do not need to observe social distancing. Rules on who can form a linked household/extended household group differ across England, Scotland and Wales.
  • are shielding and have a letter from the NHS or a GP telling them to stay at home for at least 12 weeks. Employers should be aware that, once the guidance to shield is no longer in place, SSP entitlement for those who were under that guidance will cease
  • are self-isolating because they have been notified that they have had contact with a person with coronavirus.

The Scheme will covers SSP paid due to coronavirus.  It does not allow recovery for any SSP paid for non-coronavirus related absence.

The Scheme covers all types of employment contracts, including:

  • full-time
  • part-time
  • employees on agency contracts
  • flexible or zero-hour contracts
  • fixed term contracts (until the date their contract ends).

A rebate can be claimed for both existing and former employees.

Recoverable amount

The maximum to be claimed is two weeks’ SSP, from the first qualifying day, per employee.

You can make more than one claim per employee, provided that claims are not for longer than two weeks in total.

You can claim for periods of sickness starting on or after:

  • 13 March 2020 if the employee had coronavirus or the symptoms or is self-isolating because someone they live with has symptoms
  • 16 April 2020 if your employee was shielding because of coronavirus and
  • 28 May 2020 if your employee has been notified by the NHS or public health bodies that they’ve come into contact with someone with coronavirus
  • 26 August 2020 if your employee has been notified by the NHS to self-isolate before surgery. 

If you pay contractual sick pay in excess of the SSP rate, you will only be able to recover up to the weekly rate paid. The weekly rate of SSP, since April 2020, is £95.85.

Use of SSP Rebate Scheme and Job Retention Scheme

The Government’s Job Retention Scheme was put in place to assist employers to retain their workforce during the challenging times caused by coronavirus and avoid unpaid lay off or redundancy. It allows employers to furlough their employees and claim for a Government grant to cover 80% of their wage costs.

Employers can claim both for wages under the Job Retention Scheme and SSP under the Rebate Scheme for the same employee but not for the same period.

However, the guidance points out that state aid limits should not be breached. The maximum level of state aid that a business may receive under the EU Commission temporary framework is €800,000, though this may differ in certain industries like agriculture.

Making a claim

An online service is available from 26 May 2020 for employers to make the rebate claim. No end date for the Scheme has yet been released.

To use the service, employers will need the Government Gateway user ID received when they registered for PAYE Online.

If employers are unable to make a claim online, they should have received a letter from HMRC explaining an alternative way to claim. If they haven’t received this letter, they should contact HMRC.

Employers must have paid the sick pay to their employees before they can claim it back.

The following is needed for a claim to be made:

  • the employer PAYE scheme reference number
  • a contact name and phone number in case HMRC need to contact the employer about their claim
  • UK bank or building society details (bank accounts provided should accept Bacs payments) including:
    • bank or building society account number (and roll number if it has one)
    • sort code
    • name on the account
    • your address linked to your bank or building society account
  • the total amount of coronavirus SSP the employer paid to employees for the claim period
  • the number of employees being claimed for
  • the start date and end date of the claim period.

The start date of the claim is the start date of the earliest pay period claimed for. The end date of the claim is the end date of the most recent pay period claimed for.

Employees do not have to provide employers with a doctor’s fit note in order for a claim to be made. However, employers can ask for either:

  • an isolation note from NHS 111 if they are self-isolating and cannot work because of coronavirus,
  • the NHS or GP letter telling them to shield for at least 12 weeks because they are at high risk of severe illness if they contract coronavirus, or
  • notification from a track and trace scheme which alerts the employee that they have had close contact with someone who has tested positive for the virus

The Scheme will allow claims for multiple employees across multiple pay periods at the same time.

Where employers authorise agents to do PAYE online for them, the agent will be able to make the claim.

An alternative way to claim will be available where employers are not able to make an online claim; however, no details have yet been released on this method.

Rebates will be paid within 6 working days. HMRC asks that employers do not contact them until more than 10 working days has passed since the claim was made if the money has not been received or HMRC has not made contact about the claim.

HMRC checks

HMRC will check claims and take appropriate action to withhold or recover payments found to be dishonest or inaccurate. Where employers knowingly and deliberately provide false or misleading information to benefit from the claim, they will face penalties of up to £3,000.

Record keeping

Employers must keep the following records for 3 years after the date that the rebate is received:

  • the dates the employee was off sick
  • which of those dates were qualifying days
  • the reason for the absence, whether this be that they had symptoms, someone they lived with had symptoms or they were shielding in line with NHS or GP advice
  • the employee’s National Insurance number.

On 28 May 2020, the NHS test and trace service was launched in England and Scotland. The service will:  

  • provide testing for anyone who has symptoms of coronavirus to find out if they have the virus
  • get in touch with anyone who has had a positive test result to help them share information about any close recent contacts they have had
  • alert those contacts, where necessary, and notify them they need to self-isolate to help stop the spread of the virus.  

The Government states that, by following instructions to self-isolate, people who have had close recent contact with someone with coronavirus will be protecting their family, friends, colleagues and other people around them, and will play a direct role in stopping the spread of the virus.  

When someone first develops symptoms and orders a test, they will be encouraged to alert the people that they have had close contact with in the 48 hours before symptoms started. If any of those close contacts are colleagues, the person 
who has developed symptoms may wish to (but is not obliged to) ask their employer to alert those colleagues. At that stage, those close contacts are not advised to self-isolate, but they:  

  • must avoid individuals who are at high risk of contracting coronavirus, for example, because they have pre-existing medical conditions, such as respiratory issues
  • must take extra care in practising social distancing and good hygiene and in watching out for symptoms.  

‘Close contact’ means:   

  • having face-to-face contact with someone (less than 1 metre away)
  • spending more than 15 minutes within 2 metres of someone
  • travelling in a car or other small vehicle with someone (even on a short journey) or close to them on a plane.  

Those who test positive will be asked, via the service, whether they have had any such close contact in the 48 hours before they developed symptoms and the time since they developed symptoms.  

Those who are contacted via the service will need to begin self-isolation for 14 days from their last contact with the person who has tested positive even if they do not feel unwell.  

The practical effect of this service is that many more individuals are likely to self-isolate. In addition, large parts of a workforce, or an entire workforce, may receive an alert telling them they should self-isolate because one member of the workforce has tested positive for coronavirus. Employers can help to combat this by ensuring that employees work from home where possible, or implementing strict social distancing and hygiene measures in the workplace where home working is not possible.  
Although self-isolation is voluntary at this stage,  the Government has stated it will be made mandatory if necessary.  
 
The Government has put together guidance for employers, which stresses that their role in the system is vital by:

  • making their workplaces as safe as possible
  • encouraging workers to heed any notifications to self-isolate and supporting them when in isolation.  

It acknowledges that, although this may seem disruptive for businesses, it is less disruptive than an outbreak of coronavirus in the workplace will be, and far less disruptive than periods in lockdown.  

Employers should support employees who need to self-isolate and must not ask them to attend the workplace. If an employee needs to self-isolate, employers should consider whether they are able to work from home. This might include finding alternative work that can be completed at home during the period of self-isolation.  

Employees who cannot work from home will be entitled to receive SSP in line with the guidance on self-isolation given above due to further legislative amendments. Alternatively, the employer may agree that a period of annual leave is to be taken so that full pay is maintained, or another form of paid leave that is available to the employee.  

The NHS test and trace service will provide a notification that can be used as evidence that someone has been told to self-isolate. This notification will be needed to make a claim to the SSP Rebate Scheme.

In response to the actual and potential problems caused by the coronavirus (officially known as COVID-19 and identified by the WHO in March 2020 as a “pandemic”), the Government has taken a number of emergency measures in respect of SSP, particularly for those who are forced to stay away from work — known as “self-isolating”.

The immediate response was:

  • on 4 March 2020, the Prime Minister announced that employees will receive SSP from Day One, rather than Day Four under the present system; the effect is that anyone who is absent on sick leave with coronavirus, or is under Government guidance to self-isolate, is entitled to receive SSP from Day One where their first day of incapacity was on or after 13 March 2020.
  • the Health Secretary stated that employees and workers who self-isolate for health reasons will count as being off sick from Day One.

It is important to remember that the requirement to form a PIW before SSP is payable has not been removed. This means that a period of sickness, or self-isolation, must still last for at least 4 calendar days. Once this criterion is met, SSP will be payable from the first day of absence.

On 11 March 2020, as part of the Budget, the Chancellor announced a further series of extraordinary measures to help businesses and individuals affected by the virus. They include:

  • SSP will be available to all eligible (those above the lower earnings limit, which is £120 per week for 2020/21) workers and employees if they must self-isolate because of the virus, even if they do not display symptoms of coronavirus; the objective of this change is to encourage self-isolation and minimise the risks to public health arising from coronavirus disease — regulations to implement this change came into force on 17 March 2020
  • SSP will be temporarily extended to cover those caring for people within the same household who display coronavirus symptoms and have been told to self-isolate
  • the cost of providing SSP to any worker or employee off work for up to 14 days because of the virus in businesses with fewer than 250 employees will be met in full by the Government — estimated to be over £2 million
  • to ease the pressure on GPs, coronavirus sick notes will be given out over the phone by the NHS 111 Helpline (these will be valid as evidence of sickness absence); employers have been asked to exercise their discretion not to demand a GP fit note.

As already indicated, to be eligible for this SSP the employee or worker must earn above the lower earnings limit which is £120 per week for 2020/21. This will exclude low paid workers and many on zero-hours contracts. The self-employed are not eligible.

The Government is considering other measures, including the extended use of Universal Credit and Contributory Employment and Support Allowance for this significant proportion of the working population.

It is important to remember that the day one right to receive coronavirus does not mean that the Period of Incapacity to Work rule for a minimum of four days no longer applies. Employees will still need to have been off work for at least four days to qualify for SSP, but they should then be paid at least SSP for all of those days. 

Subsequent developments 

  1. On 16 April 2020, legislation was passed which brought employees who are “shielding” within the scope of SSP. The NHS has written to approximately 1.4 million people who are considered to be at very high risk and advised them to stay at home and avoid face-to-face contact for a period of 12 weeks. This is known as “shielding”. Previous legislation which confirmed that those self-isolating were entitled to receive SSP did not cover those who are shielding. However, new legislation now confirms that “shielders” are entitled, subject to other SSP qualifying criteria, to SSP. Employers should be aware that the respective governments of England, Scotland and Wales have now relaxed shielding guidance meaning that those who are shielding will no longer need to and SSP has ceased to be payable once advice to shield no longer applies. 
  2. Re-instatement of shielding advice appears to be a real possibility since the introduction of further measures across the UK in October 2020 to combat an increase in coronavirus cases. In Scotland, some hospitality businesses were required to close from 9 October 2020 until, at the earliest, 26 October 2020. In England, some hospitality businesses in the Liverpool City Region were required to close from 14 October 2020 after having been categorised as a Tier 3 area under England’s Three Tier COVID alert system. When areas are categorised as Tier 3, baselines measures will be implemented which include the closure of some pubs and bars. In addition, further measures specific to each area will be considered which could include the re-introduction of advice to shield. Those advised to shield will receive a written communication to this effect. Should this occur, those individuals required to shield who cannot work from home will become entitled to SSP once again, subject to meeting the qualifying criteria. A key consideration here is whether a new period of shielding is linked to the previous period; the determination of such will dictate the length of SSP entitlement in the new period. If a period of absence occurs within 56 days of the previous period of absence, it will be linked which means it is treated as one continuous period and the 28 week entitlement will continue to run where it left off. The particular calendar dates involved mean that there will be more than 56 days between the shielding ‘pause’ and any new shielding period and, therefore, from the last SSP payment made due to shielding. However, employers should look out for any absences in the intervening period which qualified for SSP payment, falling within 56 days of the period of shielding, which also fall fewer than 56 days before the next shielding period. All of these periods would be linked, meaning that they still fall within the same 28 week duration of entitlement.

  3. On 19 May 2020, the Government announced that the Coronavirus Statutory Sick Pay Rebate Scheme would be available from 26 May 2020. For more information on this, see above.
     
  4. On 28 May 2020, legislation came into effect extending entitlement to SSP to those who have received a notification that they have been in close contact with someone who has tested positive for coronavirus and advised to self-isolate.
     
  5. On 6 July 2020, legislation was introduced which extends SSP entitlement to those who were required to self-isolate because someone with whom they created a social bubble has symptoms of coronavirus. It appears, however, that this is only applicable in Scotland and Wales. Linked households (as they are known in England) and extended household groups (as they are known in Scotland and Wales) are permitted under relaxed lockdown rules, meaning that people in one household may create a bubble with another household and be treated as if they live in the same house e.g. do not need to observe social distancing. Rules on who can form a linked household/extended household group differ across England, Scotland and Wales. However, although legislation now extends SSP to those in the linked/extended household who must self-isolate where someone else in that linked/extended household has symptoms, the piece of legislation which created linked households in England has now been repealed. The effect of this is that people who self-isolate in England because someone in their linked household has symptoms do not appear to be entitled to SSP. Those in Scotland and Wales, however, are entitled. It is unknown whether this was an intention move and further legislation may remove this anomaly.
     
  6. On 26 August 2020, new laws came into force which extended the right to SSP to employees who meet the following:
    - have been told in writing by a medical practitioner, or other body permitted to notify them, that they are to undergo a surgical or
      other hospital procedure
    - have been advised to stay at home for up to 14 days before their admission to hospital, and
    - who stay at home due to the above.

Note:

This information is being continually checked and updated as needed.

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.