Statutory sick pay: should employers pay it during a phased return to work?

Caroline Robins
Wednesday, November 21, 2018

Complex rules over SSP are causing confusion with employers. Our employment law expert, Caroline Robins, principal associate at Eversheds, wrote a column setting out what employers’ responsibilities were in the issue of 29 October.

Q. Is an employee working a phased return to work period entitled to statutory sick pay on shorter days worked and/or non-worked days?

A. Depending on the phased return working pattern, this is possible for non-worked days, but unlikely. Employees are entitled to up to 28 weeks’ statutory sick pay for each period of incapacity for work or linked periods of incapacity. A period of incapacity for work is a period of four or more consecutive days of incapacity. Periods of incapacity for work are linked if they are within 56 days of each other and any period back at work will bring the period of incapacity for work to an end.

Any days worked, even part-days, would not count as a day of incapacity for the purpose of the statutory sick pay entitlement rules. Therefore it would not be possible to claim statutory sick pay to top up pay on those days.

In terms of non-worked days, it is unlikely that those days would qualify for statutory sick pay. Employees have to be off work sick for three qualifying ‘waiting days’ (i.e. days which would normally be worked) before statutory sick pay starts. An employee on a phased return to work would be unlikely to serve enough waiting days in between each working day to qualify for statutory sick pay on the non-worked days.

Reader Keith Appleyard replied:

keith-appleyardI would like the challenge the advice given by Caroline Robins in the latest Nursery World (29 Oct - 11 Nov) in 'Work Matters', page 32.

According to HMRC : ‘If you agree a phased return to work or altered hours after a period of sickness, then you pay SSP for the days that your employee is sick in the normal way. Any day for which SSP is paid will count towards the maximum entitlement of 28 weeks. Your employee’s absence must form a PIW before SSP is paid.’

Caroline refers to needing to be off work for three Qualifying Working Days, but during a phased return to work, the employee will have already had their Qualifying Working Days, but now must have their PIW (Period of Incapacity for Work).

A PIW is a period of sickness lasting four days or more in a row. All days of sickness count towards the total number of days in a PIW, including bank holidays, weekends and non working days.

Therefore, if a phased return to work involves working three days a week, but they are alternate days, ie Mon-Wed-Fri, then there is no PIW, and SSP is not due.

However, if a phased return to work involves working three days a week, but they are consecutive days, e.g. Tue-Wed-Thu, then there is a PIW of four days Fri-Sat-Sun-Mon, and SSP is due.

However, if a phased return to work involves working two days a week, so long as they are not Mon & Fri, then there is a PIW of 4 days, and SSP is due.

Ms Robins responded:

In order to be eligible for SSP, the employee must, along with other qualifying requirements, have a day of incapacity for work which sits within a period of incapacity for work (PIW). A period of incapacity for work (PIW) is a period of four or more consecutive days of incapacity (section 152(2) SSCBA), so any period back at work (including as part of any phased RTW period - if the employee does any work at all the day will not count as a day of incapacity for SSP purposes (regulation 2(2), SSP Regulations 1992)) will bring the PIW to an end. The fact that two PIWs are ‘linked’ if they are within 56 days of each other does not negate the need for further waiting days, the purpose of this being to avoid the situation where employees return to work for one day to reset their SSP entitlement. SSP is not payable for the first three qualifying days in any PIW (section 155(1) SSCBA).

It is correct that for the purposes of the definition of PIW, days on which the employee is not normally required to work, such as weekends, count (section 152(6)(b) SSCBA). However, Keith's point regarding employees in a phased return to work scenario already having had their qualifying working days, but now must have their PIW, is not strictly correct. Waiting days apply at the start of each separate PIW, not each series of linked PIWs - section 155(1) SSCBA. So an employee on a phased return to work would be unlikely to ever serve enough waiting days in between each working day (waiting days must be ‘qualifying days’ i.e. days which would normally be worked) to qualify for SSP for the on non-worked days during the phased return period.

Definitions:

Period of Incapacity for Work (PIW): A period of sickness lasting four days or more in a row. All days of sickness count towards the total number of days in a PIW, including bank holidays, weekends and non working days. If there are less than 4 days in a row there is no PIW and you do not take any action.

Qualifying days (QDs): These are the only days that you can:

  • pay SSP for
  • count as waiting days

They are the days that your employee normally works - their contracted working days. You can decide not to use contracted working days, for example if your employee works a varied or alternative working pattern each week. You must agree them with your employee.

Waiting days (WDs): SSP is not payable for the first 3 QDs in a PIW - these are called Waiting days (WDs). They are not always the first 3 days of the sickness absence as the employee may be sick on non-QDs, for example weekends.

For more information see https://www.gov.uk/guidance/statutory-sick-pay-manually-calculate-your-employees-payments

 

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