Will Statutory Sick Pay (SSP) be due on the days that they are not in work?”
To pay SSP, a Period of Incapacity for Work (PIW) must be formed for each occasion of sickness. To form a PIW, an employee must have been sick from work for at least four days in a row which 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 8-week period, this is known as a period of linked sicknesses. Only occasions of sickness where a PIW have formed are counted as linked sicknesses for the purposes of SSP calculations as legislated in S152 SSCBA 1992.
If an employer agrees to a phased return to work or altered hours after one of their employees has had a period of sickness, then the working pattern agreed will determine whether SSP is due to be paid for the days the employee has not worked.
If the agreement is 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.
If the agreement is 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.
If the agreement is to return to work each contracted day but for fewer hours than the employees contracted daily hours, then again, no SSP would be due as the employee will have completed some work on each contracted day. Days only count towards a PIW if no work at all has been performed on that day as per regulation 12 of The SSP (General) Regulations 1982.
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 8 weeks for their SSP entitlement to begin again.
Currently, as part of the Employment Rights Bill, there are draft changes to the legislation in the SSCBA 1992 concerning SSP. The changes include the omission of the waiting day period of three days, changes to the eligibility rules for SSP by excluding the Lower Earnings Limit requirement and the rate of SSP being the lower of the statutory weekly rate or 80% of an employee’s normal weekly earnings.
At present, there is no confirmation of when these changes will become law.
HMRC guidance for SSP starts from SPM110000 and Croner-I commentary starts from 1030-830.
