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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 £123 per week. For SSP purposes an 'employee' is classed as someone who attracts liability for Class 1 National Insurance Contributions, or would do so if their 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  £123 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 2022, statutory sick pay rate is £99.35 per week.  (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. Rules are different for Covid-related sickness (including self-isolation); it will be paid from the first day of absence where a PIW of 4 days has been created. This is in place until 24 march 2022, from 25 march 2022 the rules will revert to what was in place before the Covid changes. 

  • 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.

Recent developments

Changes to SSP scheme proposals put forward

With around 2 million workers not eligible for SSP under the current system, which costs the exchequer £850 million, including administration, tax losses and benefits payments, proposals for reform have been put forward by employee benefits provider Unum. 

These include the introduction of an SSP rebate scheme for SMEs who take active steps to support health and wellbeing within the organisation. 

Whether or not these reforms will ever happen is unclear. This does however highlight the importance for employers to take steps to support employees to prevent sickness absence. 

 

 

Changes to fit notes from 6 April 2022

Fit notes were changed from 6 April 2022. A new version of the fit note that contains the name of the doctor authorising the form, rather than needing it to be physically signed, will now be produced. 

While this change is being rolled out the current version of the fit note that requires physically signing will still be legally valid.

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 Employment and Support Allowance (previously known as Incapacity Benefit).
 
 
 
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£99.35  per week (see our ‘Statutory rates’ page for historic rates). SSP is calculated daily by dividing the weekly rate by the number of qualifying days.

Between13 March 2020 and 24 March 2022, all those who are advised to self-isolate due to the coronavirus outbreak were entitled to be paid statutory sick pay. From 25 March 2022 SSP rules returned to their pre-covid position. 

Please refer to our section on managing coronavirus at work for more details. 

Daily Rates for Statutory Sick Pay: 2022-23

 

Unrounded daily rates

Number of qualifying days in week

1 day to pay

2 days to pay

3 days to pay

4 days to pay

5 days to pay

6 days to pay

7 days to pay

14.1928

7

14.19

28.38

42.57

56.76

70.95

85.14

99.35

16.5583

6

16.56

33.12

49.68

66.24

82.80

99.35

 

19.87

5

19.87

39.74

59.61

79.48

99.35

 

 

24.8375

4

24.84

49.68

74.52

99.35

 

 

 

33.117

3

33.12

66.24

99.35

 

 

 

 

49.675

2

49.68

99.35

 

 

 

 

 

99.35

1

99.35

 

 

 

 

 

 

 

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 - £123.
  • 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.
 
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.
 

From 24 February 2022

Routine contact tracing has now ended, and contacts no longer have to self-isolate or undertake daily tests. 

28 May 2020 - 24 February 2022

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

  • provides testing for anyone who has symptoms of coronavirus to find out if they have the virus
  • gets in touch with anyone who has had a positive test result to help them share information about any close recent contacts they have had
  • alerts 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.

The service will then contact anyone they report as having had close contact with and tell them to begin self-isolation for 10 days (14 days before 10 December 2020 in Wales and from 14 December elsewhere in the UK) from their last contact with the person who has tested positive, even if they do not feel unwell, unless they are exempt from isolation because have been fully vaccinated, or are medically exempt from being so, or are under 18.

The practical effect of this service was that many more individuals were likely to self-isolate. In addition, large parts of a workforce, or an entire workforce, could receive an alert telling them they should self-isolate because one member of the workforce tested positive for coronavirus. Employers could 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 was not possible.

Self-isolation was a legal duty until 24 February 2022 and anyone under the duty who was found not to be self-isolating faced fines starting at £1000 and increasing to £10,000 for repeat offenders.

The Government put together guidance for employers, which stressed that their role in the system was 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 acknowledged that, although seemed disruptive for businesses, it was less disruptive than an outbreak of coronavirus in the workplace will be, and far less disruptive than periods in lockdown.

Employers should have supported employees who needed to self-isolate and 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. 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.

SSP payments for those self-isolating will end on 24 March 2022 in England, as will payments for Covid related absences starting from day one. 

Giving options to ensure full pay is maintained may be particularly important due to the possibility that an employee may be reluctant to self-isolate if it means a drop in pay. Employers could strongly encourage employees who received a notification to make this known, and to self-isolate, in order to protect the rest of the workforce.

The NHS test and trace service provided a notification that could 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.

A similar scheme, called “test and protect” is in place in Scotland.

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”.

From 25 March 2022

SSP payments for covid-related absence ceased from 25 March 2022. SSP should now only be paid to those who are too sick to work. This is a return to pre-covid SSP rules, and the usual 4 waiting days will apply to all absences. 

The changes coming to an end are:

  • payment for isolating due to Covid, Covid symptoms or contact with Covid, when the individual is not actually unwell.
  • payment from the first day of the absence however:

Covid related SSP will still paid from day one (subject to the employee meeting all other qualifying criteria) where the first day of the period of incapacity to work (PIW -  the waiting days needed for SSP to be paid), is any day up to and including Thursday 24 March 2022. Where the first day of the PIW is Friday 25 March 2022 or later, SSP should be paid from day four. 

For example: 

Where the first day of the PIW fell on Monday 21 March, Tuesday 22 March, Wednesday 23 March, or Thursday 24 March then SSP should be paid from day one. 

Where the first day of the PIW is Friday 25 March or after, SSP will be paid from day four. 

Background - Not reflective of the current position

The immediate response to the pandemic:

  • 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 2020/2021 and 2021/22) 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 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 has symptoms or coronavirus (where they are under 18, fully vaccinated or medical exempt from vaccination, current guidance states isolation is not required)
  • have been in close recent contact with someone who has tested positive and received a notification to self-isolate from NHS test and trace (where they are under 18, fully vaccinated or medical exempt from vaccination, current guidance states isolation is not required)
  • 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.

A Coronavirus Statutory Sick Pay Rebate Scheme was introduced which would allow certain businesses to claim back SSP paid in certain circumstances. This scheme finished on 30 September 2021 but was re-ignited from 21 December 2021. All claims under the re-opened scheme must be made before 24 March 2022.

See 'The Coronavirus Statutory Sick Pay Rebate Scheme' above for more information.                                                                                                                                                                                                         

 

Long-Covid is understood to be a condition suffered by individuals who have recovered from Covid-19 but are still showing certain symptoms as a result that are affecting their daily lives. Currently, the NHS website lists the following symptoms:

  • extreme tiredness (fatigue)
  • shortness of breath
  • chest pain or tightness
  • problems with memory and concentration ("brain fog")
  • difficulty sleeping (insomnia)
  • heart palpitations
  • dizziness
  • pins and needles
  • joint pain
  • depression and anxiety
  • tinnitus, earaches
  • feeling sick, diarrhoea, stomach aches, loss of appetite
  • a high temperature, cough, headaches, sore throat, changes to sense of smell or taste
  • rashes

Whilst it is debatable as to whether long-Covid could be considered a disability, recent guidance from Acas advises organisations to respond to it as though it is when responding to sickness absence. Please click here for details.

 

Self-certification

Where the sickness absence lasts for 7 days or less, organisations cannot require certification from a medical professional, unless they pay privately and the employee consents to examination. 

Temporary rules were in place at the end of 2021 into the start of 2022 due to the impact of Covid; where the period of sickness started between 10 December 2021 and 26 January 2022 only, employees did not have to provide a fit note until they had been off work (including non-working days) for 28 days. This applied to non-Covid related sicknesses only.

When they return to work, employees can be asked to confirm they’ve been off sick. This is called ‘self-certification’. The organisation should specify how the employee should do this. They might need to fill in a form or send details of their sick leave by email.

Certification by a medical professional

Where an employee has been away from work sick for more than 7 days in a row they must give their employer a doctor’s ‘fit note’ (sometimes called a ‘sick note’). This includes non-working days, such as weekends and bank holidays.

If employees are self-isolating and cannot work because of Covid they can get an ‘isolation note’ online from NHS 111. They do not have to see a GP or go to hospital. 

If they are off work with any other illness, they can get a fit note from a GP or hospital doctor. Organisations can also choose to accept a similar document provided by a physiotherapist, podiatrist or occupational therapist instead. This is called an Allied Health Professional (AHP) Health and Work Report.

Fit notes are free if the employee has been ill for more than 7 days when they ask for one. The doctor might charge a fee if they ask for the fit note earlier.

The fit note will say the employee is either ‘not fit for work’ or ‘may be fit for work’.

If it says the employee ‘may be fit for work’, employers should discuss any changes that might help the employee return to work (for example, different hours or tasks). The employee must be treated as ‘not fit for work’ if there’s no agreement on these changes.

Employers can take a copy of the fit note. The employee should keep the original.

Changes to fit notes from 6 April 2022

Fit notes changed on 6 April 2022. A new version of the fit note has been introduced that contains the name of the doctor authorising the form, rather than needing it to be physically signed.

While this change is being rolled out the current version of the fit note that requires physically signing will still be legally valid.

 

The UK Government initially launched the Coronavirus Statutory Sick Pay Rebate Scheme (SSPRS) in March 2020  to help employers with recovery from the pandemic. This “old” scheme ended on 30 September 2021. The portal for submitting claims under the old scheme closed on 31 December 2021 for any absences up to 30 September 2021.

Employers could not claim for the period from 1 October – 20 December 2021 inclusive as no scheme was in operation during this time. 

The reintroduction of the SSPRS was announced by Rishi Sunak on 21 December 2021 as part of a £1bn support package for businesses impacted by the Omicron variant of Covid-19.

The re-opening of the Scheme covered covid-related sickness absences occurring from 21 December 2021. Should a covid-related absence have started before 21 December 2021, only payments made for absence from 21 December 2021 could be claimed for. 

The portal for reclaiming has now been launched and is available on the government website gov.uk. The Scheme closed for covid related absences on 17 March 2022.

All claims under the scheme had to be made before 24 March 2022. 

Who can use the rebate scheme? 

Businesses eligible to use the Scheme are those which:

  • are UK-based
  • had fewer than 250 employees as of 30 November 2021
  • had a PAYE payroll system as of 30 November 2021
  • have already paid their employees’ Covid-related SSP

Connected companies and charities can also use the scheme if their total combined number of PAYE employees was fewer than 250 on the 30 November 2021.

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 (the qualifying days).

SSP owed as a result of Covid can be paid from day one, subject to a PIW forming, until 24 March 2022, when SSP rules reverted to those in place pre-covid. 

The Scheme only covered SSP paid for absences due to coronavirus. For example, for employees who tested positive for Covid or were instructed to self-isolate. It does not allow recovery for any SSP paid for non-coronavirus related absence. For example, most people are asked to self-isolate for 3 days before surgery. In this case, the day of surgery will be the 4th day of their period of incapacity for work. You cannot claim repayment of SSP for the day of surgery or any other days when the absence is not due to coronavirus, but it is possible to claim for the 3 self-isolating days. 

The Scheme covered 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, but claims cannot be made for more employees than were on the PAYE payroll on 30 November 2021. 

How much can be claimed back? 

The maximum that could be claimed claimed was two weeks’ SSP, from the first qualifying day, per employee. You could make a claim under the new scheme for an employee who was previously claimed for under the old scheme. The two-week time limit essentially ‘reset’ in this regard.

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

If you pay contractual sick pay in excess of the SSP rate, you could only recover up to the weekly rate of SSP paid. The weekly rate of SSP, since April 2021, is £96.35. 

The portal is now closed. Claims had to be made by the end of 24 March 2022, for covid-related absences between 21 December 2021 and 17 March 2022.

How to make a claim

An online reclaims portal was open which could be accessed through the Government website.

To use the service, you needed the Government Gateway user ID you received when you registered for PAYE Online.

Agents who are authorised to do PAYE online for you could make a claim on your behalf.

You must have paid the sick pay to your employees before you could claim it back.

What information was needed to make a claim? 

  • the number of employees you were claiming for
  • start and end dates of the claim period
  • the total amount of sick pay being claimed back – it should not have exceeded 2 weeks of the set SSP rate
  • your Government Gateway user ID and password that you got when you registered for PAYE Online
  • your employer PAYE reference number
  • the contact name and phone number of someone who can be contacted with queries
  • your UK bank or building society account details (only provide account details where a Bacs payment can be accepted) 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

To complete the claim you needed the start and end dates of the claim period which was the:

  • start date of the earliest pay period you were claiming for - if the pay period started before 21 December 2021 you would need to use 21 December 2021 as the start date
  • end date of the most recent pay period you were claiming for - this must have been on or before the date you made your claim (because you could only claim for SSP paid in arrears)
  • These dates must not fall after 17 March 2022

Employees did not have to give you a doctor’s fit note for you to make a claim. But you could ask them to give you:

  • an isolation note from NHS 111 if they are self-isolating and cannot work because of coronavirus
  • notification that they must self-isolate from NHS Test and Trace (England)/NHS Test and Protect (Scotland)/NHS Wales Test, Trace, Protect Service
  • official email or text confirmation from NHS Test and Trace (or equivalent service) of a positive Covid test result – this can be following a PCR test or self-upload of a lateral flow test.

The Scheme allowed you to claim for multiple employees across multiple pay periods at the same time.

Will HMRC conduct any checks on the claim? 

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 £3000.

How long will it take to receive the money? 

You should have received the rebate within six working days. HMRC asked that you did not contact them until more than 10 working days has passed since you made the claim if you had not received the rebate nor heard from HMRC about the claim.

What records should be kept? 

You must keep the following records for three years after the date you receive the payment for your claim:

  • the dates the employee was off sick
  • which of those dates were qualifying days
  • the reason they said they were off work, whether this be that they had symptoms, someone they lived with had symptoms, they returned a positive Covid test or were instructed to self-isolate
  • the employee’s National Insurance number.

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

These changes included removing the need for individuals to achieve the lower earnings level (currently set at £120 per week, rising to £123 per week from 6 April 2022) before they became eligible for SSP and simplifying rules around qualifying days. To help provide more employees with support, the consultation was 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 would help encourage employers to take action to return employees to work.

The consultation closed in October 2019.

On 21 July 2021, the government made it clear that, largely due to the response to Covid, that they would not be implementing any of the proposed major reforms to SSP.

 

Eligible employers were previously able to recover some of the SSP paid out to employees under the Percentage Threshold Scheme. To determine eligibility, the following process was 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 was greater than the figure in step 1, the employer could claim back the difference between the two amounts.

The calculation had to be repeated every month. Employers who paid their tax and NICs quarterly could claim any SSP rebate over the same period, although they still had to do a monthly calculation. Any recovered SSP was recorded in the Employer's Annual Tax Return (currently form P14).

Note that the Percentage Threshold Scheme was abolished on the 6 April 2014. Employers record-keeping requirements associated with the scheme were also abolished on this date. Employers had 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.

 

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 was removed in 2018. No new referrals may now be made to the scheme, although any employee who was referred before 15 December 2017 still received 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 consented to being referred to the service were invited for a telephone assessment by a Fit for Work occupational health professional. The assessment aimed 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’ was agreed between the advisor and employee. The plan could 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 according to NMW 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 earning national living wage (i.e. who is 23 or older) might earn between £57 and £285 per week (correct for 2021/2022 NMW rates). The point at which SSP must be paid is if an employee earns at least the lower earnings limit (see Statutory rates for up to date information on this), 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 the lowers earnings limit 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.

One of my employees is regularly off work with a bad back. it is no so bad she has by the far worse absence record in the company. Is there anything I can do to manage this? 

Persistent short-term absences can cause a lot of disruption for small organisations, both in terms of the disruption to work and also in the impact it has on other employees, who may become frustrated at having to pick up the extra work. 

The following key points can be addressed by employers in seeking to manage absences of this nature. 

  • Monitor absences. Implement strategies seeking to minimise short-term absences

    A short-term sickness absence policy can include: 

    • a definition of short term absence (e.g. 1/2/3 days, generally up to 2 weeks)

    • make it clear it is separate to the long term sickness policy 

    • highlight that records will be kept by managers monitoring the absences 

    • explain certification requirements - self-certification for up to 7 days, a doctor's fitnote after that

    • Outline the absence reporting procedures.

  • Swift action

    Identifying the problem early and acting on it is crucial to the effectiveness of an absence management process. Consent should be sought if a medical report is required, as these can take time to come back from the doctor. 

  • Return-to-work interviews

    These are incredibly useful in managing short term absences. They can be a deterrent, as the employee knows they will have to face direct questions about their absence on their return.                             

          They can also help to identify patterns and themes within the absences that might need to be managed or dealt with, such as bullying in the workplace. 

          They can be relatively short meetings, but must be recorded. 

  • Formal action: Warnings

    If the employees absence is a cause for concern, an investigation should take place in which the absence history is discussed in detail with the employee. 

    The employer should discuss the improvement that is expected, what they and the employee can do to reach this (i.e. required levels of attendance, and what the potential consequences are of failing to do this e.g. a warning and potentially, eventually, a dismissal. They should also be told 

  • Things to watch out for 

    Pregnancy related absences should always be excluded as well as those due to an underlying medical reason that could be a disability under the Equality Act 2010 (for more information on this see Disability discrimination). Should any reasonable adjustments be required, these should be discussed, agreed and implemented with the employee (see our How to comply with the duty to make reasonable adjustments). 

  • Dismissal is always the last resort

    This will be on ground of capability.

As far as your employee is concerned, an in-depth conversation at the next return to work interview is recommended, in which you discuss the reasons for her absence in detail and try to identify any underlying medical causes. In this, you can explain their value to the business, but that you have concerns with their absence levels.

You could highlight that their levels are the highest of anyone in the company, and query if she would be willing to give consent to an occupational health review. It would also be appropriate to caution her that should this continue as it is, she could face formal action that may eventually lead to her dismissal. 

As with nearly every HR process, make sure to keep accurate records. 

One of my employees takes regular sick leave, normally at the beginning or the end of the week. I think the reasons they have given are false, and they are not genuinely sick. Is there anything I can do about this? 

 

In these situations, it is best to have robust policies and procedures that are always enforced, to deter these kind of absences. These can include the following: 

  • Require employees to call in and speak to their manager when they are going to be off sick. 

  • Get employees to certificate their absence - a self-certificate for absences less than 7 days, a doctor's note after that. 

  • Hold return to work interviews and ask questions about the absence, such as what was wrong and what treatment was sought. 

  • Explain that repeated absences or sick leave can cause problems for the business and may well lead to further investigation. Policies should include a warning that persistent long-term sickness absence could lead to the employee’s dismissal.

You might also consider asking the employee to see an occupational health specialist for an assessment (at the employers expense)

it is important to always make sure that the absence is not as a result of a disability under the the Equality Act 2010. If this is the case, reasonable adjustments should be identified and implemented before taking any action (see our employment law resource on Disability discrimination and our How to comply with the duty to make reasonable adjustments). 

Procedures must be followed if you decided to progress this matter to dismissal. Encouragingly, the EAT has ruled that an employee falsely claiming to be unfit for work can reasonably be classed as gross misconduct (Ajaj v Metroline West Ltd.) The employee had behaved dishonestly and was in breach of trust of the employee-employer relationship and, as such, the employer was entitled to dismiss.

My employee is on sick leave with a doctor's note. I'd like to contact them to discuss their possible return to work, is this possible? 

It is understandable that employers may be cautious of contacting staff on sick leave, but keeping in touch with absent staff is essential. However, there is a line between showing you care and badgering staff who are recuperating. 

It is usual for sickness absence policies to state that contact will be made during an absence to discuss recovery. Focusing solely on the return date may stress the employee, and encourage them to return sooner than they should. 

Which matters to discuss and the frequency of contact will depend on the nature of the illness and vulnerability of the employee, but some suggested areas to discuss include: progress, medication and whether there are reasonable adjustments that can be made to their job role which will allow them to return to work. 

Making sure contact is sensitive and positive can mean a sooner and smoother return to work. Consider other contact methods such as calls, emails or meetings at a neutral, relaxed location such as a cafe close to the employee’s house.

Not contacting absence employees can lead to feelings of isolation and being out-of-touch, which could in turn make the absence worse and their return much more difficult to manage.

One of my employees has called in to say they are sick, but they are off on holiday. How does this affect sick leave and pay? 

Under the EU Working Time Directive (WTD),  minimum annual leave entitlement is four weeks per year. The UK Working Time Regulations (WTR) give UK workers an additional 1.6 weeks’ annual leave per year.

Various cases have dealt with this matter, including Pereda v Madrid Movilidad and Stringer v HMRC.

The following principles can be taken from the case law in this area: 

  • Annual leave can be taken during a period of sickness, but only if the worker chooses to

  • Alternatively, leave can be taken at another time, even into another annual leave year

  • Annual leave will role over to the next leave year automatically, there is no requirement for this to be requested

  • Non-payment of holiday pay is an unauthorised deduction from wages.

  • On termination, the worker should be paid for untaken annual leave (subject to an 18 month cut-off Plumb v Duncan Print Group)

Bear in mind, however, that It is not, however, all bad news for employers. The right to carry over leave only applies to the four weeks under the WTD: the additional 1.6 national entitlement is not covered.

In any case, as a matter of “best practice”, employers should look to tighten up their sickness absence procedures, including setting out what is expected of a worker who falls sick on holiday.

The period of incapacity for work begins when an employee is incapable of working due to sickness for a period of four consecutive “qualifying” days, which are days where the employee would have been expected to work. Statutory sickness payments are not payable for the first three days of incapacity to work, however if you have contractual sickness pay you will need to follow your company policy in relation to these payments.

I have an employee who is on sick leave. I want to contact them when their doctor’s note expires to see when they intend to return to work. Is it OK for an employer to contact an employee while they are on sick leave?

Employers may often shy away from contacting staff when absent from work due to illness, but keeping in touch with absent staff is essential to a good absence management process. There is a fine line between making enough contact and badgering staff while they are supposed to be recuperating and employers should attempt to strike the right balance.


Most sickness absence policies will state that contact will be made by employers to review the progress of the employee’s recovery and this should be what any contact is for; rather than contacting them to ask them to return to work earlier than their scheduled return date. When making contact, some thought should go into what will be discussed during the call to ensure the employee is put under as little stress as possible.


Some areas which can be discussed are: current progress, medication and whether reasonable adjustments can be made to their job role which will allow them to return to work. The matters to be discussed, and the frequency of contact may need to be amended due to the nature of the illness and the vulnerability of the particular employee.


Sensitive and positive contact during sick leave can smooth the way for the employee returning to work on a permanent basis. When making contact, other methods can be used such as calls, emails or meetings at a neutral, relaxed location such as a coffee shop close to the employee’s house.


Failing to communicate with the employee at all during their absence could leave them feeling isolated and out-of-touch with the business and could, in turn, worsen their condition or leave them feeling apprehensive about their return.
 

Employees are entitled to statutory sick payments for up to 28 consecutive weeks. The employee will need to meet the weekly lower earnings limit set annually by the Government (see our Statutory rates page for more information) to be eligible to receive payment and must be covered by a note from a medical practitioner if they are absent for more than seven consecutive days.

An employer’s liability to pay statutory sick pay ends when the employee:

  • is no longer sick
  • starts her 39-week maternity pay period
  • is taken into legal custody, arrested or imprisoned
  • dies
  • has their contract of employment terminated
  • has received 28 weeks’ statutory sick pay in a period of incapacity for work (linked or not)
  • has a three-year-long period of incapacity in their current employment.

An employer may wish to obtain a medical report on an employee for a number of reasons — for example:

  • To review information on that employee’s fitness to work following long-term sickness absence
  • As part of consideration of the employee’s entitlement to contractual sick pay
  • To evaluate reasonable adjustments for the employee under the Equality Act 2010.

The EU General Data Protection Regulation (GDPR), which came into force on 25 May 2018, imposes new obligations on the employer seeking information about an employee’s health — classed as “special category” data. You can no longer rely on merely obtaining a contractual consent from the employee at the beginning of employment to their undergoing a medical examination.


You must seek explicit consent from the employee. But, because of the imbalance of power between employer and employee, express consent from the employee may still not be enough. You will also have to identify one of the three lawful grounds to process general employee data:

  • The performance of the contract of employment
  • A legal obligation on the employer
  • The employer’s legitimate interests.

In general, an employer should rely on the first two lawful grounds; an employer’s legitimate interests are more open to argument and interpretation.


In addition, you must demonstrate a legal justification to process special personal data. You will need to rely on one of the following:

  • That the processing is necessary to comply with an employer’s obligation or to give the employee rights under employment law; or
  • Processing is necessary to assess the working capacity of the employee.


As a result, separate consents to the medical examination and to the processing of the data collected from the report must be obtained from the employee.


If you have not done so already, you should review and update employment contracts, sickness policies and model letters in the light of the requirements of the GDPR. You will also need, under the Data Protection Act 2018, to have a documented policy relating to the health information which you will have to maintain and disclose to the Information Commissioner (ICO) if requested.


The employee has the right to refuse to attend a medical examination, but they should be advised that any decision the business/organisation makes on their ability to perform the role will therefore have to be done without the benefit of medical advice and may be detrimental to the employee and their future employment with the business/organisation. In such cases, the employer is entitled to rely on the evidence that it holds on the employee.
 

The short answer is that you should already have policies and procedures in place that deter this type of behaviour. Such steps include the following.

  • Requiring employees to phone in and speak to their manager if they are going to be absent. An email or telephone message will not suffice.
  • Requiring employees to provide a doctor’s fit note if they are off sick for more than a week (seven calendar days).
  • Holding “return to work interviews” where employees will have the opportunity to explain their absence.
  • Making it clear that repeated absences or sick leave cause problems for the business and will lead to further investigation; indeed, the policies should warn that persistent long-term sickness absence could lead to the employee’s dismissal.

You could also consider asking the employee to see an occupational health specialist, which the employer would cover the cost of. However, remember that you cannot force an employee to do this unless it is in their contract of employment.


Furthermore, always ensure that the sickness absence is not the result of a disability under the Equality Act 2010. If the employee has a disability, by law the employer must consider making reasonable adjustments to help them return to work and carry out their job. Any precipitate action by you could lead to disability discrimination claims which could prove very expensive.


If, in this case you do decide to take disciplinary action that could lead to their dismissal — based on real proof from an investigation — then you should make sure that you follow procedures adequately. Encouragingly, the EAT has ruled that an employee falsely claiming to be unfit for work can reasonably be classed as gross misconduct (Ajaj v Metroline West Ltd.) The employee had behaved dishonestly and was in breach of trust of the employee-employer relationship and, as such, the employer was entitled to dismiss.

Can employees legally take sick days if they are feeling overwhelmed by stress, anxiety or depression?

Yes they can, because a mental health issue can have the same effects as a physical illness in meaning that someone is not fit for work.


A mental health issue can be just as damaging — and can often have longer-lasting effects — than a physical ailment. That’s why 12.8 million working days were lost in 2019 due to stress, depression or anxiety.


That said, anyone off for a period of seven days or more will still need to provide a fit note from their doctor.


It is also worth noting that your employees are probably already taking mental health days, they’re just disguising them as something else. Research from AXA PPP Healthcare showed that while 77% of employees would be truthful about physical sickness or injury, such as flu or back pain, only 39% would tell the truth if they had to call in sick due to stress, anxiety or depression.