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Statutory Sick Pay

 

The rules relating to SSP have undergone a number of changes In light of the coronavirus outbreak, and they continue to evolve as the public health guidance evolves. The current position is this.

SSP Start Date

The legislation was amended on 28 March to provide that employees who commenced, or commence, a period of incapacity for work, or deemed incapacity for work, related to coronavirus on or after 13 March (and who are otherwise eligible) are entitled to SSP from the first day of absence provided that they miss at least 4 consecutive days of work. This contrasts with non-Covid related sickness absence, whereby SSP is only payable from the fourth day of absence due to actual incapacity for work.

Therefore, if an employee commenced a period of absence because of self-isolation (see below) or infection with the virus before 13 March and they would otherwise be eligible for SSP, they will still not have qualified for SSP until the fourth day of absence.

Employees who work sufficiently limited part time hours will not benefit from the change in the rules. For example, an employee who starts a 10-day isolation period on a Saturday and normally works only from Wednesday to Friday each week will miss just 3 days’ work, and so still won’t qualify for SSP. Similarly, an employee who self-isolates because they apparently have symptoms of coronavirus but then tests negative the next day and so returns to work will not qualify for SSP.

Deemed Incapacity

Obviously, a period of incapacity for work will relate to the virus if an employee is rendered unfit to work due to infection. The legislation was amended on 13 March so that an employee will also be deemed to be incapacitated if they are not working because they are self-isolating due to suffering symptoms of coronavirus (even if they are not actually unfit to work). With effect from 31 July, the required period of self-isolation for those who have tested positive for, or otherwise displayed symptoms of, coronavirus was increased from 7 to 10 days.

“Symptoms of coronavirus” are currently defined as the recent onset of all or any of

  • a continuous cough or
  • a high temperature or, from 18 May
  • a loss of, or change in, normal sense of taste or smell (anosmia)

or any other symptoms of coronavirus as may be specified by the Chief Medical Officer or one of the Deputy Chief Medical Officers in guidance as amended from time to time.

The legislation was amended further on 28 March, backdated to 13 March, to extend this to employees who are not working because they are in a period of 14-day “household isolation” because a member of their household has suffered symptoms of coronavirus, or because when isolating for this reason they developed symptoms of coronavirus and are staying at home for 7 days, beginning with the day the symptoms started.

From 6 July, entitlement to SSP to those isolating in response to a member of their household showing symptoms of coronavirus were extended in Wales and Scotland to members of an or extended household. In Wales, this applies to two households which have agreed to be treated as a single household in accordance with public health guidance.

Shielding

The legislation was amended further on 16 April so that, from that date, a person who is not working will also be deemed incapable of work for a reason related to coronavirus when they are isolating themselves because:

  • they are defined in public health guidance as clinically extremely vulnerable and at very high risk of severe illness from Covid-19 because of an underlying health condition and
  • they have been advised by a notification (sent to, or in respect of, them) that, in accordance with that guidance, they need to follow rigorously shielding measures for the period specified in the notification.

Shielding is to end in England from 1 August. It is to continue in Wales until at least 16 August.

Test and Trace

From 28 May a person who is not working will be deemed to be incapable of work if they are self-isolating because they have been notified under the Test and Trace system that they have had contact with a person with coronavirus. Such individuals are to self-isolate for 14 days – unless and until they develop symptoms of coronavirus, in which event they are to apply for a test, and if that is positive they must self-isolate for 7 days from when they developed symptoms.

Notable Exceptions

If any person who is returning to the UK from a country in respect of which a requirement to quarantine for 14 days applies is unable to work during this period, they will not qualify for SSP unless they also meet one of the above criteria.

An employee does not qualify for SSP if they are furloughed under the Coronavirus Job Retention Scheme.

Reclaiming SSP

Under the Coronavirus Statutory Sick Pay Rebate Scheme, eligible employers can reclaim up to 2 weeks’ SSP that they pay, or have paid, to any current or former employees who were eligible to receive it as per the above.

Eligible employers can claim for periods of sickness starting on or after:

  • 13 March 2020, if the employee had coronavirus symptoms or was self-isolating because someone they live with displayed symptoms;
  • 16 April 2020, if the employee was shielding;
  • 28 May 2020, if the employee has been notified by the NHS or public health bodies that they have come into contact with someone with coronavirus.

The scheme can be used by employers if they had a PAYE payroll scheme that was created and started on or before 28 February 2020 and (in combination with any “connected companies and charities”, if applicable) had fewer than 250 employees on 28 February 2020.

What constitute “connected companies and charities” is not defined in the current guidance. However, it is noted that in its direction to HMRC regarding the operation of the Coronavirus Job Retention Scheme (“CJRS”) of 15 April, the Treasury uses the term “connected” and states as follows:-

Logically, “connected” will have the same meaning in relation to companies and charities in the context of the Coronavirus Statutory Sick Pay Rebate Scheme as it has in the context of the CJRS. It appears that the headcount of connected employers in the context of the CJRS which are not companies or charities will not be aggregated in determining whether the 249-employee limit for accessing the SSP rebate scheme is exceeded.

The guidance states that employers must keep records of all the statutory sick payments that they want to claim from HMRC for 3 years following their claim, including in relation to each relevant employee:

  • the reason why they could not work, i.e. if they had symptoms, someone they lived with had symptoms or they were shielding;
  • their National Insurance number;
  • the dates when they could not work and which of those were SSP qualifying days.

Employees do not need to provide a doctor’s fit note in order for the employer to be able to claim. If evidence is required by an employer (which will be in the employer’s discretion), employees can be asked to self-certificate for up to 7 days’ incapacity and, thereafter, those who are self-isolating for up to 14 days in accordance with public health guidance can get an isolation note from NHS 111 online, whilst those who are in a highly vulnerable group and have been notified in accordance with public health guidance that they should be shielding can be asked to produce a copy of the relevant notification.

SSP can be reclaimed on-line. Employers who are unable to claim online should have received a letter on an alternative way to claim. Employers who are unable to make eligible claims online but have not received a letter should contact HMRC.

The current full government guidance on the Coronavirus Statutory Sick Pay Rebate Scheme is here.

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