Employment Contracts

by Kate Russell

Statutory sick pay (SSP)

You must pay Statutory Sick Pay (SSP) to all eligible employees for periods of absence of four days or more for a total of 28 weeks in one period of incapacity for work.

Where an employee is entitled to full organisational sick pay, he will receive his normal monthly pay and this will include any entitlement to SSP.

Eligibility

An employee must satisfy a number of qualifying conditions to be entitled to SSP from you. You must decide if SSP is payable and how much you are liable to pay.

An employee’s average weekly earnings must reach the Lower Earnings Limit in a specific period for them to get SSP.

Employees who pay Class 1 NICs will be entitled to SSP if their earnings are high enough.

From 1 October 2006, an employee is a person whose earnings attract liability for employee’s primary and employer’s secondary Class 1 NICs, or would but for their age and level of earnings. This will include, for example, agency workers, who may be regarded as employees for the purposes of receiving SSP.

Notification

An employee telling you they are sick is the starting point for SSP. It is not evidence of incapacity; it is simply your employee letting you know why they are off work. If they notify you by letter, it must be treated as received on the day it was posted. If you cannot tell the date it was posted, assume it was posted two days before the date it was received, or three days if it is received on Monday or Tuesday, but you must make allowances for public holidays and any known local variations in postal arrangements.

You can make your own rules about when and how your employee should notify sickness for your own purposes. You must tell your employees your rules for notification in advance.

The employee must be off work sick for four or more of their normal working days in a row to be able to get SSP from you. These are known as qualifying days. However, if your employee has been sick for four or more days in a row and sick absence continues, but they are not entitled to SSP, you must complete form SSP1, or your own computerised version, so that they can claim Incapacity Benefit from their Jobcentre Plus or social security office.

For SSP purposes, you cannot insist that your employee notifies you

  • In person
  • Earlier than the first qualifying in a spell of sickness
  • By a fixed time on the first qualifying day
  • More often than once a week during the sickness
  • On a special form
  • On a medical certificate.

If you wish, you can make one set of rules for the first notification in a spell of sickness and another, perhaps less strict, set of rules for the second and following notifications in the same spell of sickness.

If you don’t make your own rules, the regulations say that your employee, or their representative(s), must tell you of any date they are unfit for work no later than seven calendar days after that day.

You can withhold payment of SSP if the notification is given outside the time limits described above or there was no good reason for the delay.

You should accept that notification was given on time if the employee does not notify you within the time you have specified, or seven calendar days of the start of the incapacity, and you think there was good cause for delay, if it is given.

You should also accept notification if it is given within one calendar month of the time you have specified, or of the seven days period after any relevant days of incapacity, or up to 91 days after any relevant days of incapacity, if you are satisfied it was not reasonably practicable for the employee to notify you within the calendar month.

It is up to you to decide what is a good cause, but examples could be

  • An employee lives alone with no means of contacting you to tell you of his illness, or
  • An employee is seriously ill in hospital and there was no one who could tell you.

SSP can only be withheld for the number of qualifying days for which notification was late. As no SSP is payable, these days do not count towards the 28-week maximum for SSP.

Periods of incapacity for work

Where a Period of Incapacity for Work (PIW) is separated from an earlier PIW by eight weeks (that is 56 days) or less, the two absences ‘link’ and are treated as one PIW.

A PIW must always be formed before there can be a link; that is, your employee must be sick for at least four or more days in a row.

Odd days of sickness do not form a PIW and cannot link.

SSP is paid at the same time and in the same way as you would pay wages for the same period.

A full week, for SSP purposes, begins with a Sunday and ends at midnight the following Saturday.

SSP must be paid for all periods of entitlement, regardless of whether or not earnings would normally be due for the same period.

You treat SSP just like pay, so you must make deductions for PAYE and NICs. Any other deductions which you lawfully make from pay can also be made from SSP, for example pension contributions, student loan deductions and attachment of earnings orders.

When does the responsibility to stop paying SSP arise?

The responsibility to stop paying SSP may arise for one of several reasons, described below.

  • When the employee returns to work for you: you usually stop paying SSP when your employee returns to work.
  • Maximum 28 weeks’ entitlement paid: if your employee is still absent due to ill health when you have paid SSP for 28 weeks, you should fill in form SSP1 and send it to your employee without delay. Your employee will need to use form SSP1 to claim Incapacity Benefit. If you know in advance that your employee will continue to get SSP for the full 28 weeks, you should issue form SSP1 at the 23rd week to ensure there is a smooth change-over to Incapacity Benefit. If you don’t know that far in advance, issue it as soon as you know 28 weeks will be reached.
  • Sick employee leaves: you stop paying when a sick employee leaves your employment and you must issue form SSP1 without delay. You must also issue form SSP1(L) if the employee requests it.
  • Employee in legal custody: an employee who is in legal custody at any time on the first day of the PIW cannot get SSP for the whole of that PIW. If they are taken into custody during a PIW, your liability to pay them SSP stops and you should send them form SSP1. They cannot get SSP for the rest of that PIW. (Legal custody means detained, arrested or in prison. It does not include voluntarily helping the police with enquiries, serving a suspended sentence or being on bail.)
  • Employee involved in a trade dispute with you: if your employee is off work because of a trade dispute on the first day of the PIW they cannot get SSP unless:
  • They have no direct involvement in the dispute

and

  • They did not take part in it at any time up to and including the first day of the PIW.

If they go sick again, for four or more days in a row, within 56 days of their return to work after the dispute, you will need to issue them form SSP1 so they can claim IB.

If they are off sick when the trade dispute starts, they will continue to be entitled to SSP only if they take no active part in the dispute.

  • Employee dies: if the employee dies, SSP is due up to and including the day of death and stops from the day following their death.

For current rates of SSP see Statutory rates.

Potential Changes

In January 2018 the government published a paper on its plans to see one million more disabled people in work over the next ten years.

The government’s vision is to see a reformed SSP system which supports more flexible working, for example, to help support phased returns to work, including spacing out working days during a return to work, managing a long-term health condition, or recovering from illness. SSP is currently inflexible and creates a financial disincentive for employees to consider some forms of phased returns to work.

The government will bring forward a consultation on these changes, as well as any other SSP changes it identifies in its wider work, before introducing this reform. Existing guidance on SSP eligibility will be improved and better publicised to ensure that employers and employees each understand their rights and responsibilities.

Also under consideration is Matthew Taylor’s recommendations about SSP eligibility and the way entitlement is accrued, and about sickness absence management. Mr Taylor’s recommendations will be fully considered as part of the wider work on SSP, including assessing how the recommendations will impact on employers and employees. Careful consideration is to be given to the view that entitlement to SSP is a basic employment right that is a foundation to establishing fair, decent and quality work.