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Sick pay


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The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 have been made and came into force today 13th March 2020. The regulations say that SSP will be available to anyone isolating themselves from other people to prevent infection or contamination with coronavirus, in accordance with guidance published by Public Health England, NHS Scotland or Public Health Wales.

See also

Pay during Medical Suspension

Suspension of Maternity Grounds

Pregnancy and Maternity protection

Coronavirus and Sick Pay

Sick pay 

Coronavirus and Work – Keeping Safe

Coronavirus advice for employers and employees

Courts and Tribunals COVID-19 preparation

 

What is sick pay?

If you are off work because of ill health, you are entitled to pay during your sickness absence. There are two types of sick pay;

  • Statutory sick pay
  • Contractual Sick Pay

Statutory Sick Pay

The Social Security Contributions and Benefits Act 1992 (SSCBA 1992) places a statutory duty on your employer to pay Statutory Sick Pay (SSP) to all employees who are off work due to sickness and who qualify for sick pay. The payment is made for sickness periods of four days or more up to a total of 28 weeks absence in any one period of sickness [see current rate of SSP ]


Sick days 

The days you take off sick are called the “period of incapacity for work” which is abbreviated to PIW. All days of sickness, even non-working days, count towards the total number of days in a PIW. As an example, if you work from Monday to Friday and you are ill on Saturday, Sunday, Monday and Tuesday, your sickness creates a PIW even if you were only absent from work on the Monday and Tuesday. The first three days of the PIW are called waiting days, and your employer does not have to pay SSP for those days.


Entitlement to SSP

Qualifying conditions for entitlement to SSP are laid out in HMRC Guide SPM10130. The main qualifications are as follows;

  • You must be an employee as defined in section 163(1) SSCBA 1992. The HMRC Guide SPM10205: SSP – Who is covered by the SSP scheme? explains eligibility for SSP.
  • You must be too ill to work on any day on which you claim SSP -Section 151(4) SSCBA 1992
  • You must have at least four consecutive days’ of sickness absence (including Sundays and Bank holidays) during which you are too ill to work (PIW) – Section 152 SSCBA 1992
  • You must let your employer know that you will be absent from work due to sickness. This is subject to certain statutory requirements and any agreement between you and your employer – Section 156 SSCBA 1992
  • You must give your employer evidence of your sickness. This would be a self-certificate if you are off work for up to seven days, and a Fit Note if you are off work for longer than seven days –  Section 156 SSCBA 1992
  • You must earn at least £112 a week – Section 5 SSCBA 1992
  • Any two periods of sickness which are separated by eight weeks or less are treated as a single period of absence for the purposes of SSP – Section 152 (3) SSCBA 1992

You can qualify for SSP from more than one job. You can also qualify in one job but be fit for work in another, for example if one job is physical work that you cannot do because of your sickness, but your other job is office-based. 


Not qualified for SSP

The circumstances in which a person would not be entitled to SSP are listed in Schedule 11 of SSCBA 1992,and Regulation 3 of the Statutory Sick Pay(General) Regulations 1982. If you don’t qualify for SSP or your SSP runs out, you must apply for Employment and Support Allowance (ESA) instead. You apply for ESA on form SSP1. If you think that you should be entitled to SSP, you can contact HMRC about it. Form SSP1 tells you how to do this. You should also check with your employer if you are entitled to contractual sick pay.


Options if your Employer refuses to pay SSP

Your employer must let you know that they will not be paying SSP, and give you a reason why on Form SSP1.  You will have a claim for unlawful deductions, breach of contract, or both. You can make a claim against your employer for unlawful deduction of wages at the employment tribunal within 3 months of the non-payment (Part 11 ERA 1996) or within 6 years as a breach of contract claim in the County Court. Before you submit a claim you must raise a grievance with your employer. If your grievance and appeal are unsuccessful, contact the free ACAS Early Conciliation service who will help you try and resolve the matter. If they are unsuccessful, you will be given a Conciliation Certificate. Once you get the Conciliation certificate you can file your claim in the Employment Tribunal.

Disputes about the amount of SSP or your entitlement to SSP are decided by HMRC. Use form SSP1 to claim ESA and ask for HMRC to consider your entitlement to SSP.

You can also get in touch with the Statutory Payments Disputes Team to help you;

Statutory Payments Disputes Team
Room BP 2301
Benton Park View
Longbenton
Newcastle upon Tyne
NE98 1YS

Tel: 03000 560 630

Your application must;

  • be in writing
  • be made within 6 months of the earliest date on which your entitlement to SSP became an issue
  • state the period for which your entitlement is in issue together with the grounds (if any) on which your employer has denied liability to pay SSP

You can appeal a determination by HMRC to the Tax Chamber of the First-Tier Tribunal.  From here, you can appeal to the Upper Tribunal (Tax and Chancery).


Contractual sick pay

SSP is the minimum that you are entitled to for sickness absence. Your employment contract may have terms and conditions which give you an entitlement to contractual or company sick pay. This generally makes up the difference between the amount of SSP and your normal wages. Section 1(4)(d)(ii) of the Employment Rights Act 1996 (ERA 1996) says that the terms and conditions of sick leave and pay should be set out in the Section 1 Statement of Written Employment Particulars. The Section 1 Statement, your employment contract or your employer’s sick pay policy will let you know how company sick pay is administered. You may have to work for a certain period of time to be entitled to company sick pay. Sick pay may be paid at the full rate for a certain period, half rate for a further period and then not paid after that.


Contractual Sick Pay and Statutory Sick pay

There is no conflict between SSP and contractual sick pay, but you cannot get SSP for any period that you receive contractual sick pay, and vice versa – Schedule 12 SSCBA 1992


Fit Notes

Your GP will give you a fit note when you are off sick so that you can give your employer evidence about the advice you have received about your fitness for work. The Fit Note will tell your employer whether you are;

  • fit for some work, or
  • fit for work taking account of changes that can be made to the workplace or your role to help you return to work, such as;
  1. a phased return to work
  2. altered hours
  3. amended duties
  4. workplace adaptations

If you have been off work sick for more than four weeks, your employer or your GP can refer you to Fit for Work, the government occupational health service. The Fit for Work service will work with you and develop a Return To Work Plan that will help you get back to work.

You can self-certify if you have been off work for seven days or less. Self-certification can be verbal, written or on HMRC form SC2 – Employees Statement of Sickness. Your employer can only ask for a Fit Note if you have been off sick for more than seven days.


Your employer refuses to let you return to work

If your employer refuses to allow you to return to work, even though your G.P says that you are Fit to work, then your employer must pay you your full wages, unless your employment contract says something different. In Beveridge v KLM UK Limited [2000], Ms Beveridge was employed as Cabin Crew by KLM when she went off sick. She was entitled to 26 weeks of sick pay. Ms Beveridge run out of sick leave and was off work until the beginning of 1999 when she was certified as fit for work by her G.P.  KLM refused to allow her to return to work on 1st February 1999 because they wanted to check her fitness to return to work for themselves. It took KLM six weeks to allow Ms Beveridge back to work. KLM did not pay her for the six weeks from 1 February until she returned to work and so she made a claim to the tribunal for unlawful deductions from wages for that period.

Ms Beveridge lost her case in the Employment Tribunal, but was successful in her appeal to the Employment Appeal Tribunal (EAT). The EAT agreed with her that an employee has a contractual right to payment of wages when presenting themselves as fit for work unless the contract in a specific situation expressly denied that right for a particular reason. There was no such provision in her contract, and so KLM had to pay her the money for that period.


Updated: 13/03/2020

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