What happens when an employee is ill?

Many of us will have experienced the usual seasonal colds and flu in recent months, and the news is full of stories about the Corona virus which has emerged in China. It therefore seems like a suitable time for a quick reminder about the obligations employers have when a member of their staff is off ill.

What is Statutory Sick Pay and who qualifies for it?

If an employee is off work ill, and meets the relevant conditions, their employer has to pay them Statutory Sick Pay (SSP).

A key condition for SSP is that the employee has to have been off work for four or more days (including non-working days) in a row. Absences of less than four days do not carry any right to SSP.

In addition, to qualify for SSP the employee must:

  • have done some work for you before being off sick (though note there is no requirement to have worked a minimum number of weeks as there is for other statutory payments);
  • earn at least the NIC lower earnings limit (currently £118 a week); and
  • give you the required notice and proof of illness (see ‘What do employees need to do’ below).

An employee won’t qualify for SSP if they:

  • have already received the maximum amount of SSP (28 weeks);
  • are receiving Statutory Maternity Pay;
  • are off work for a pregnancy-related illness in the 4 weeks before the week that their baby is due;
  • were in custody or on strike on the first day of sickness;
  • are working outside the EU and you’re not liable for their National Insurance contributions; or
  • received Employment and Support Allowance within 12 weeks of starting or returning to work for you.

Special rules apply if an employee has regular periods of sickness.  Such periods may be ‘linked’ if they:

  • last 4 or more days each; and
  • are 8 weeks or less apart

Importantly, employees are no longer be eligible for SSP if they have a continuous series of linked periods of absence that lasts more than three years.

How is SSP calculated and operated?

The rate of SSP is £94.25 per week, which is payable for up to 28 weeks.

You can choose to pay a higher rate than this in line with any contractual sick pay scheme or other agreement with your employees but you cannot pay less.

SSP is paid for qualifying days – broadly days on which the employee would have been working for you if they were not sick.  However, SSP is generally not payable for the first three days an employee is off sick, which are referred to as ‘waiting days’.  SSP is only payable for waiting days if the employee has already received SSP in the last eight weeks, and that included a three-day waiting period.

SSP is paid in the same way as wages, that is on the normal pay day, with PAYE and NICs applied accordingly.

Importantly, unlike some other statutory payments, you cannot reclaim any element of SSP back from the Government.

Statutory annual leave continues to accrue while the employee is off work sick (no matter how long they’re off for) and annual leave can be taken during sick leave.  However, you cannot force an employee who is eligible for sick leave to take annual leave instead.

There is no requirement to keep any specific records of SSP paid to employees, though keeping some form of record is sensible in case there is any dispute in the future.

What do employees need to do?

In order to be eligible for SSP your employees need to:

  • inform you that they are sick within any time limit you have set (or within seven days if you have not set a time limit); and
  • provide proof of sickness in the form of a fit note if they are off sick for more than seven days in a row (including non-working days).

Employees are not required to provide a fit note if they are off work for 7 days or less – in such cases they can be asked to ‘self-certify’ on their return to work instead. 

You do not have to pay SSP for any days an employee is late in informing you they are sick (unless there’s a good reason for the delay).  However, you can’t withhold SSP if an employee is late sending in a fit note.

Fit notes (often referred to as sick notes) can be issued by GPs or hospital doctors.  You can also agree to accept similar documents provided by physiotherapists, podiatrists or occupational therapists (referred to as Allied Health Professional (AHP) Health and Work Reports).

The fit note will either say the employee is ‘not fit for work’ or that they ‘may be fit for work’.  If the employee may be fit for work, you should discuss with them any changes or adaptations which may enable them to return to work, such as different hours or tasks.

You can take a copy of a fit note, but the employee should keep the original.

What happens when SSP payments stop?

SSP stops being payable on the earlier of when the employee comes back to work, after 28 weeks, or when the employee no longer qualifies for any other reason.

If an employee’s SSP is going to end before they are well you have to send them a form SSP1.  This is important, as the form will support the employee in applying for other benefits (such as Universal Credit or Employment and Support Allowance) which they may need to claim in the absence of SSP.

The deadlines for issuing form SSP1 are:

  • By the start of the 23rd week of sickness where the employee’s SSP is expected to end before their sickness does;
  • Within 7 days of their SSP ending if it ends unexpectedly whilst they are still sick.

To help your employees, you can issue form SSP1 before the end of the SSP period if you know the employee will be absent for more than 28 weeks.  This will allow them to apply for extra benefits well in advance.

If an employee does not qualify for SSP at all, then you need to send them form SSP1 within 7 days of their going off sick.

If an employee returns to work after a period of sick leave, it may be necessary to make ‘reasonable adjustments’ to take into account their health condition or any disability.  This could include making physical changes to the work place, changing equipment or allowing more flexible or shorter working hours and patterns.

More information

There is a large amount of information on SSP on GOV.UK, including:

Whilst the above sets out the general SSP rules, it should be noted that there are different sick pay rules for certain employment types, including agency workers, agricultural workers, directors and educational workers.

Finally, as reported in last September’s Employer Focus, the Government has consulted on a number of proposals which aim to reduce the number of jobs lost due to ill-health and support more disabled people and people with long-term health conditions to remain in work.   This includes several potential reforms to SSP to improve its flexibility and enforcement

Posted in: Employment