Coronavirus and Statutory Sick Pay conditions

My good friend and Cintra’s Head of Legislation and Compliance, Ian Holloway, has written this excellent and timely piece on Statutory Sick Pay (SSP). I’ve added my thoughts in italics.

As Covid-19 continues to spread worldwide, employers are faced with the increasing challenge and reality of employees needing to work from home and in some cases self-isolate. It’s important both HR and Payroll professionals are well familiarised with SSP rules, understand what this means for their workforce (both process and business planning wise) and the qualifying conditions.
The difficulty is that these SSP rules are unclear, and worse, are confusing, given the guidance issued in the wake of the Coronavirus. It is imperative that we get this right, both for employers and employees. Based on the ACAS’ guidance alone, a healthcare worker could be forced into an inappropriate situation where they must decide whether to work (in order to continue earning minimum wage and afford to live) or whether to self-isolate if they suspect they may have come into contact with the disease through their work.

Please take into account these confusing and conflicting views when confirming your organisation’s stance on the matter, and ensure your employees are well informed of their rights and the appropriate process.

NB: Do make sure employees understand that SSP is company sick pay. Unless (and until) the government changes the rules, it is employers who will be funding any payment of SSP, including the extension of the payment to the first three days of absence. At the time of writing (Sunday 8th March), this legislation has not yet been changed so there is no requirement for an employer to pay for the first three days, they can of course choose to do so, but that is entirely voluntary as it is company sick pay.

Conditions for payment of Statutory Sick Pay (SSP)

At a time when people worldwide are being told to stay away from work or self-isolate, I thought that it might be relevant to outline a fundamental qualifying condition for SSP. This is a payment that employers are required to make, currently at a rate of £94.25 per week (£95.25 from 6th April). I have been reading various reports stating that employers are refusing to pay SSP unless the employee is physically sick. Or, that ‘the normal SSP rules will apply’, with employers and employees believing that the employee must be physically sick.

The qualifying conditions – GOV.UK

GOV.UK’s simplified guidance says that the SSP qualification criterion for an employee is as follows:

  • The individual must be classed as an employee and have done some work for the employer (strictly, they must be under a contract of employment and unfit to so work under that contract of employment at the start of the day. They do not actually need to have performed any work, i.e. it could be their first day of work). Being classed as an employee means those who are workers and subject to class one national insurance. For example, casual work as an agency worker can also qualify if the individual’s earnings are high enough. The term worker can also apply to those who are self-employed, in which case no SSP would be payable as they are not subject to class one national insurance.
  • The employee must have been ill for at least 4 days in a row (including non-working days). This is forming the all-important Period of Incapacity for Work (PIW)
  • The employee must earn an average of at least £118 per week (i.e. have average weekly earnings at or above the Lower Earnings Limit for National Insurance)
  • The employee must tell their employer they are sick, abiding by the notification requirements.

All of this guidance points to the fact that the employee must be physically sick. This is not right.

The qualifying conditions – the legislation

The relevant legislation is the Statutory Sick Pay (General) Regulations 1982 and the Statutory Sick Pay (General) Regulations (Northern Ireland) 1982. These have been updated via:

However, although there are two separate pieces of legislation (4 including the Amendment Regulations), the effect is the same.

‘Tangible’ sickness
In the first instance, SSP is payable where the sickness is one that is ‘tangible’, i.e. influenza, depression, broken leg etc that prevents an employee performing work under their contract of employment.

Precautionary sickness
In the second, both of the 1982 pieces of legislation say that a reason for sickness eligibility is that the absence is for ‘precautionary or convalescent reasons’. If someone that is registered to give this advice says that someone should refrain from work for these reasons, then they are incapable of performing work under the contract of service and they will be eligible to be considered for SSP.

The purpose of the 2006 Regulations is to say that the person is eligible to be considered for SSP if the reason for the absence from work is ‘by reason of his being a carrier, or having been in contact with a case, of a relevant disease’. This is as long as it is the result of ‘an enactment’, i.e. a piece of legislation. The Regulations then prescribe the relevant enactment legislation in each nation of the UK that contains the reasons why individuals must refrain from working.

HMRC’s statutory payments manual

For non-legislative guidance on whether an employee is eligible for SSP, purely as a result of it being a tangible sickness or a precautionary one, look no further than HMRC’s Statutory Payments Manual 1102000.

At the top of this page, confusingly, it does not point to the legislation that I have pointed to. Instead, it points to parts of the Social Security Contributions and Benefits Act (SSCBA) 1992 and Northern Ireland equivalent. I do not see that this is relevant regarding the type of sickness for which SSP may be payable. It does not point to the legislation as I have which says that there are two types, and the employee does not have to be physically incapable for work.

However, HMRC’s guidance says that, to be eligible to be considered for SSP, the primary condition is:

‘they must be unfit for work under their contract of employment due to physical or mental incapacity, or have been advised to refrain from work for precautionary or convalescent reasons. Or be a carrier of or have been in contact with an infectious or contagious disease and been issued with a statement from the appropriate medical officer advising them not to go to work’.

In summary

Of course, following on from whether the type of sickness can be considered for SSP purposes, the employer then has to go through the usual process of considering the length of sickness and the level of earnings etc.

However, all of the above contradicts the advice for employees and employers regarding Coronavirus that has been issued by the Advisory, Conciliation and Arbitration Service (ACAS). This says:

‘There’s no legal (‘statutory’) right to pay if someone is not sick but cannot work because they:

  • have been told by a medical expert to self-isolate
  • have had to go into quarantine
  • are abroad in an affected area and are not allowed to travel back to the UK’

So, what do you believe? The legislation and HMRC’s guidance or that from ACAS? Personally, I think that employers need to be aware that a person does not have to be physically or tangibly sick to be considered for SSP. A carrier, someone in contact with a carrier or someone who has been advised to refrain from work for precautionary or convalescent reasons, can also be considered for SSP.

The above only deals with the statutory obligation to pay SSP. However, there are other situations where the employee might not come in or be asked to refrain from coming to work. In these instances:

  • If the employee voluntarily chooses not to perform work under their contract of employment, there is no obligation to pay SSP, salary or any occupational sick pay. BUT
  • If the employer imposes a restriction on people performing work under their contract of employment, i.e. by asking them not to come into the office, the employer should pay full pay. This would be the same if the employer wanted employees to perform their work under a contract of employment but from home

Evidence

At the moment the SSP rules require either a fit note or an Allied Health Professional (AHP) report be supplied to the employer if the individual is off for more than seven days. It may well be that the evidence condition is also relaxed, as proposals were circulated last year to extend it to 14 days in any event to ease pressure on GPs and that was before COVID-19.

Exclusion form

You may have noticed that on Tuesday 18th February a new version of the SSP1 form suddenly appeared on GOV.UK. There had been no consultation on this with the statutory payments forum of which Ian and I are both members. It included two new reasons for exclusion, one of which was that the employee had been off less than four days. As a result of this, HMRC said they had been receiving complaints from employees, whose employers had correctly not paid SSP for waiting days. They therefore decided it was in their best interests to ask employers to issue hundreds of thousands of exclusion forms every week for short term absence. 

Ian and I made the case very firmly that this would put an unworkable burden on employers to issue these unnecessary forms to employees who have been off for less than four days, and who in any case could not make a claim for any state benefit for such a short period. On Friday 6th March, the new version of the SSP1 was removed from GOV.UK and the old form reinstated.

NB: Do ensure that you are using the form dated 1/19 not 10/19. There will be a new form in due course, but clearly it’s not a priority at the moment when the rules around SSP are up in the air as they are at present.