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A. When an employee returns to work following a period of sickness absence on a phased return, the time they are not working, when contractually they normally would be, is treated as sickness absence. This is because the reason they are not at work is that they are unwell.
This can however create complications for the payment of SSP, as to qualify for it, a period of incapacity for work (PIW) must be formed for each occasion of sickness.
A PIW is formed when an employee has been sick from work for at least four days in a row. This can include non-working days. For a payment of SSP to be made, three waiting days (WDs) need to be served first with SSP payable from day four of the sickness.
If an employee has more than one occasion of sickness within an eight-week period, this is known as a period of linked sicknesses. Only occasions of sickness where a PIW has formed are counted as linked sicknesses for the purposes of SSP calculations.
The working pattern your client agrees with their employee will determine whether SSP is due to be paid for the days the employee will not worked.
If they agree to return to work on Monday, Tuesday and Wednesday, for example, then Thursday to Sunday would form a PIW as there will be four continuous days away from work in a row and so SSP would be payable on Thursday and Friday as these days are the only working days within the PIW.
On the other hand, if they agree to return to work on Monday, Wednesday and Friday for example, then that working pattern would not leave enough days of the week for a PIW to form of four continuous days away from work and so no SSP would be due to be paid on the contracted days when the employee is not in work.
Alternatively, they could agree to return to work each contracted day but for fewer hours than the employees contracted daily hours. Again, no SSP would be due as the employee will have completed some work on each contracted day and days only count towards a PIW if no work at all has been performed on that day.
It’s also worth noting that any day for which SSP is paid will count towards the maximum entitlement of 28 weeks. The employee must return to work without any sick leave for over eight weeks for their SSP entitlement to begin again.
If the Employment Rights Bill comes in, in its current form, it will remove the waiting day period and the Lower Earnings Limit requirement, meaning there will be no minimum pay a worker must receive to be paid the weekly rate of SSP. SSP will then be paid the lower of the current rate of SSP or 80% of normal weekly earnings.
