Statutory Sick Pay and Coronavirus

In light of the coronavirus outbreak, the Chancellor made a series of announcements in relation to statutory sick pay (“SSP”) in his budget address on 11 March, namely that:-

(i) Entitlement to SSP is to start from the first day of absence, rather than only after three waiting days.

(ii) Businesses with fewer than 250 employees will be able to reclaim from the State SSP paid to any employee for up to 14 days in connection with coronavirus.

(iii) Employees who cannot work because they have self-isolated in accordance with government guidance, and who otherwise qualify for it, are to be entitled to SSP – notwithstanding that they might not actually be unfit to work.

However, the first two changes have not yet been implemented and despite the government and Acas guidance suggesting otherwise, the third has only been partially implemented.

So what is the current position?

SSP Start Date

In guidance published for employees on 20 March, the government has stated that it is in the course of making the necessary legislative changes so that employees will be entitled to SSP from the first day of absence, and that once the legislation has been passed it will apply retrospectively from 13 March.

The government guidance for employees published on 20 March relating to SSP is available here.

Reclaiming SSP

In guidance for employers published on 20 March, the government announced that it is to pass legislation that will allow “small and medium-sized businesses” to reclaim up to two weeks’ SSP paid per eligible employee who has been off work because of Covid-19.

The guidance goes on to state that employers with fewer than 250 employees as of 28 February 2020 will be eligible.

However, despite the absence of express reference to other qualifying criteria, the reference to small and medium-sized businesses suggests that it might be the case for limited companies that only those not classed as large companies in accordance with rules relating to the filing of accounts will be eligible.

To be no larger than a medium-sized company for those purposes, a limited company and, if applicable, its parent company, must meet at least two of the following conditions:

  • annual turnover must be no more than £36 million
  • the balance sheet total must be no more than £18 million
  • the average number of employees must be no more than 250 (note, up to 250 employees, not “fewer than”, as per the expected criterion relating to reclaiming SSP).

It remains to be seen if it will be as simple as that any employer which had fewer than 250 employees as of 28 February will be able to reclaim SSP, regardless, in the case of companies, of the size of any parent company.

The guidance states that employers will be able to reclaim expenditure for any employee who has claimed SSP “according to the new eligibility criteria” as a result of Covid-19: in respect of which see the below section on Eligibility.

The guidance states that employers should maintain records of staff absences and payments of SSP, but that employees will not need to provide a GP fit note; and if evidence is required by an employer (which will be in the employer’s discretion), those with symptoms of coronavirus can get an isolation note from NHS 111 online and those who live with someone that has symptoms can get a note from the NHS website.

The eligible period for the scheme is not to commence until the day after regulations on the extension of SSP to those staying at home comes into force (again, see below re Eligibility).

An actual repayment mechanism has yet to be developed. The guidance states that the government will work with employers over the coming months to set this up as soon as possible.

The guidance for employers published for employers on 20 March in relation to reclaiming SSP is available here.

Eligibility

Although government guidance, including that published for employees only on 20 March, and Acas guidance has stated that employees are already entitled to SPP if they are self-isolating for 14 days in accordance with guidance to do so because a person in their household has displayed symptoms of the virus, the current legislation does not reflect this.

The legislation relating to SSP was amended with effect from 13 March to state that a person is deemed incapable of work (and so, if they otherwise qualify, are entitled to SSP) where they are isolating themselves in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales effective on 12 March. This covers employees who self-isolate for seven days because they have displayed symptoms (but who are not necessarily unfit to work), but not employees who are in “household isolation”. This is because the guidance on household isolation did not come into effect until 16 March.

However, it is apparent from the guidance published for employers on 20 March that further legislation is on the way to address this.