Statutory Sick Pay (SSP)

Here we endeavour to cover some of the frequently asked questions relating to Statutory Sick Pay (SSP) in the UK and what has changed during the evolution of the coronavirus pandemic.

Do we have to pay Statutory Sick Pay (SSP) when an employee has to self-isolate?

You must pay SSP if any worker or employee who is eligible for SSP, has to self-isolate because:

  • they have the coronavirus; 
  • they have coronavirus symptoms; 
  • someone in their household has coronavirus symptoms; or
  • they’ve been told to self-isolate by a doctor or NHS 111

The current rate of SSP from 6 April 2020 is £95.85 per week (which increased from £94.25 per week).

The employer can opt to furlough an employee and claim for a sick employee on furlough terms under the Coronavirus Job Retention Scheme (see below).

When must Statutory Sick Pay (SSP) be paid from?

SSP is payable from day one and the waiting days have been waived for employees where they are incapable, or deemed to be incapable, of doing work by reason of coronavirus. 

Can I claim Statutory Sick Pay (SSP) back from the Government?

The Government will allow employers with less than 250 employees (as at 28 February 2020) on their payroll to reclaim SSP for each eligible employee who has been off work because of coronavirus from the first day of sickness for up to 2 weeks.

You can claim for periods of sickness starting on or after:

13 March 2020 - if your employee had coronavirus or the symptoms or is self-isolating because someone they live with has symptoms

16 April 2020 - if your employee was shielding because of coronavirus

If you’re an employer who pays contractual sick pay at more than the weekly rate of Statutory Sick Pay you can only claim up to the weekly SSP rate paid.

We suggest that using absence type or, if not possible, using the comments / description to clearly identify self-isolation / coronavirus related sickness in your payroll records to ensure that the coronavirus related SSP is identifiable against ‘normal SSP’ to facilitate the reclaim. Payroll software may need to be adapted.

We have less than 250 employees on our payroll but are linked to another payroll can we claim?

It will depend. Connected companies and charities can use the scheme if their total combined number of PAYE employees are fewer than 250 on or before 28 February 2020. We expect HMRC to consider the employment allowances rules on connections when looking at this.

For employees we have claimed for how long do we need to keep records?

You must keep records of Statutory Sick Pay that you have paid and want to claim back from HMRC.

You must keep the following records for 3 years after the date you receive the payment for your claim:

  • the dates the employee was off sick;
  • which of those dates were qualifying days;
  • the reason they said they were off work - if they had symptoms, someone they lived with had symptoms or they were shielding; and
  • the employee’s National Insurance number.

You can choose how you keep records of your employees’ sickness absence. HMRC may need to see these records if there’s a dispute over payment of SSP.

You will need to print or save your state aid declaration (from your claim summary) and keep this until 31 December 2024.

How do we make a claim?

The online portal open on 26th May for claims it can be found here.

HMRC will check claims and take appropriate action to withhold or recover payments found to be dishonest or inaccurate. Where employers knowingly and deliberately provide false or misleading information to benefit from the claim, HMRC will apply penalties of up to £3000.

Where an employee is on sick leave for more than seven days – do we still need to obtain medical evidence in accordance with our contracts?

By law, medical evidence is not required for the first seven days of sickness. After seven days, employers may use their discretion around the need for medical evidence. The Government has strongly advised that employers should use their discretion to allow GPs to focus on their patients at this critical time. This is the case whether or not the employee is on sick leave as a result of coronavirus.

Is a pregnant employee, who has been asked to stay at home because of coronavirus, on Statutory Maternity Pay (SMP) or Statutory Sick Pay (SSP)?

If the pregnant employee stays at home due to Government guidance relating to coronavirus, it will not be classed as a pregnancy related illness and therefore normal SSP rules will apply assuming there has been no suspension on medical grounds where the employee may be entitled to full pay. The employee will not be required to bring their maternity leave forward where they are in the final four weeks of pregnancy.

What if an employee has already exhausted their 28 weeks' Statutory Sick Pay (SSP) entitlement?

If the employee has already exhausted their 28 weeks SSP entitlement, they won’t be entitled to any more even if it is related to coronavirus.  They should be given the SSP1 form and advised to claim Universal Credit / Employment and Support Allowance.

What if an employee wants time off to look after someone affected by coronavirus?

It is clear from the PHE guidance that those with coronavirus symptoms and any family members should self-isolate and they would therefore be entitled to SSP.

There is also guidance on social distancing aimed at people aged 70 or older, under 70 with underlying health conditions and those who are pregnant and guidance on shielding for 12 weeks for those defined on medical grounds as extremely vulnerable.

Originally it was not clear whether people who fall into the social distancing/shielding groups are entitled to SSP. Regulations in place from 16 April 2020 mean that if an individual cannot work as they are shielding (in line with government guidance), then they may now be entitled to receive SSP. The amendments are intended as a safety net for individuals where an employer opts not to furlough them under the Job Retention Scheme or they are unable to work from home.

What if an employee who is furloughed becomes unwell and entitled to SSP?

The payment of SSP takes precedence. An employer cannot reclaim both SSP and make a furlough grant claim.

If employers want to furlough employees who are currently off sick, they are eligible to do so but then the employee would no longer receive sick pay (either SSP or contractual sick pay) and would be classified and paid as a furloughed employee.

Can an employer claim both under the Coronavirus Job Retention Scheme and SSP reimbursement?

An employer can reclaim expenditure from each of the CJRS and the SSP rebate scheme for the same employee but not for the same period of time. If an employee becomes unwell during a furlough leave period, the employer can choose whether to continue to pay the employee as a furloughed employee (provided the pay is no less than SSP) or to revert to SSP or contractual sick pay after considering both the impact on its ability to reclaim for either or both and the impact on its employment contract and other obligations to its employee.

If the employee were furloughed at 80% of salary or variable pay and that took the employee below the SSP rate, the employee’s pay during furlough would need to be increased to at least the SSP rate. There is only a (very) small group of salaried employees which could fall into this category as the Lower Earnings Limit is the level at which an employee must earn to qualify for SSP.

For further guidance on the above, please contact

Carolyn Brown Carolyn Brown

Partner, Head of Client Legal Services

Steve Sweetlove Steve Sweetlove

Partner

Susan Ball Susan Ball

Partner