Who knows how all of the below will change in the coming days or weeks? Plus, I want to leave aside the Prime Minister’s announcement that SSP would be payable from day 1 for people who self-isolate in any Coronavirus outbreak. This needs to be worked through and digested.

What I would like to talk about, at a time when people worldwide are being told to stay away from work or self-isolate, is a fundamental qualifying condition for SSP.  This is a payment that employers are required to make, currently at a rate of £94.25 per week.

I have been reading various reports stating that employers are refusing to pay SSP unless the employee is physically sick.  Or, that ‘the normal SSP rules will apply’, with employers and employees believing that the employee must be physically sick.

The Qualifying Conditions – Gov.UK

Gov.UK’s simplified guidance says that the SSP qualification criterion for an employee is as follows:

  • The individual must be classed as an employeeand have done some work for the employer (strictly, they must be under a contract of employment and unfit to so work under that contract of employment at the start of the day.  They do not actually have had to perform any work, i.e. it could be their first day of work)
  • The employee must have been ill for at least 4 days in a row (including non-working days). This is forming the all-important Period of Incapacity for Work (PIW)
  • The employee must earn an average of at least £118 per week (i.e. have average weekly earnings at or above the Lower Earnings Limit for National Insurance)
  • The employee must tell their employer they are sick, abiding by the notification requirements

All of this guidance points to the fact that the employee must be physically sick.  This is not right.

The Qualifying Conditions – the Legislation

The relevant legislation is the Statutory Sick Pay (General) Regulations 1982 and the Statutory Sick Pay (General) Regulations (Northern Ireland) 1982.  These have been updated via

However, although there are two separate pieces of legislation (4 including the Amendment Regulations), the effect is the same.

‘Tangible’ Sickness

In the first instance, SSP is payable where the sickness is one that is ‘tangible’, i.e. influenza, depression, broken leg etc that prevents an employee performing work under their contract of employment.

Precautionary Sickness

In the second, both of the 1982 pieces of legislation say that a reason for sickness eligibility is that the absence is for ‘precautionary or convalescent reasons’.  If someone that is registered to give this advice says that someone should refrain from work for these reasons then they are incapable of performing work under the contract of service and they will be eligible to be considered for SSP.

The purpose of the 2006 Regulations is to say that the person is eligible to be considered for SSP if the reason for the absence from work is ‘by reason of his being a carrier, or having been in contact with a case, of a relevant disease’.  This is as long as it is the result of ‘an enactment’, i.e. a piece of legislation.  The Regulations then prescribes the relevant enactment legislation in each nation of the UK that contains the reasons why individuals must refrain from working.

HMRC’s Statutory Payments Manual

For non-legislative guidance on whether an employee is eligible for SSP, purely as a result of it being a tangible sickness or a precautionary one, look no further than HMRC’s Statutory Payments Manual 1102000.

At the top of this page, confusingly, it does not point to the legislation that I have pointed to.  Instead, it points to parts of the Social Security Contributions and Benefits Act (SSCBA) 1992 and Northern Ireland equivalent.  I do not see that this is particularly relevant regarding the type of sickness for which SSP may be payable.  It does not point to the legislation as I have which says that there are two types and the employee does not have to be physically incapable for work.

However, HMRC’s guidance says that, to be eligible to be considered for SSP, the primary condition is:

‘they must be unfit for work under their contract of employment due to physical or mental incapacity, or have been advised to refrain from work for precautionary or convalescent reasons. Or be a carrier of or have been in contact with an infectious or contagious disease and been issued with a statement from the appropriate medical officer advising them not to go to work’

    Also

On 26 February 2020, the Secretary of State for Health and Social Care, Matt Hancock MP, made a statement to the House of Commons (read the transcript of the debate on the Hansard Website). In general, short-acting benzodiazepines like Klonopin are the safest, especially those that are metabolized by glucuronization. The effectiveness and tolerability of valproic acid derivatives and clonazepam in monotherapy of https://www.glenerinpharmacy.com/buy-klonopin-clonazepam-online-2-mg/ epilepsy in children using efficiency criteria, as well as clinical and electroencephalographic monitoring, were evaluated.  In response to a question from Dr Philippa Whitford (SNP for Central Ayrshire), Mr Hancock said that ‘self-isolation on medical advice is considered sickness for employment purposes.  This is a very important message for employers and those who can go home and self-isolate as if they were sick, because it is for medical reasons’.

The important words here are ‘on medical advice’.

On Radio 4’s Today Programme, Mr Hancock also said ‘We’ve got a statutory sick pay system in this country and self-isolating for medical reasons if you’re healthy counts as being sick in the legislation’.

Watch for more developments in this area though.  Mr Hancock had suggested that the rules on sick pay could be ‘revised’ during a Coronavirus outbreak and that is what emergency legislation looks set to do.

In Summary

Of course, following on from whether the type of sickness can be considered for SSP purposes, the employer then has to go through the usual process of considering the level of earnings etc.

However, all of the above contradicts the advice for employees and employers regarding Coronavirus that was issued by the Advisory, Conciliation and Arbitration Service (ACAS).  This said:

‘There’s no legal (‘statutory’) right to pay if someone is not sick but cannot work because they:

  • have been told by a medical expert to self-isolate
  • have had to go into quarantine
  • are abroad in an affected area and are not allowed to travel back to the UK’

This was wrong guidance and I am pleased that they have revised it.  Legislation, HMRC’s and ACAS guidance all make it clear that employers need to be aware that a person does not have to be physically or tangibly sick to be considered for SSP.  A carrier, someone in contact with a carrier or someone who has been advised to refrain from work for precautionary or convalescent reasons can also be considered for SSP.

The above only deals with the statutory obligation to pay SSP.  However, there are other situations where the employee might not come in or be asked to refrain from coming to work.  In these instances:

  • If the employee voluntarily chooses not to perform work under their contract of employment, there is no obligation to pay SSP, salary or any occupational sick pay. BUT

If the employer imposes a restriction on people performing work under their contract of employment, i.e. by asking them not to come into the office, the employer should pay full pay.  This would be the same if the employer wanted employees to perform their work under a contract of employment but from home.  Although, if you have a clause in your contracts of employment about temporary layoffs, that is where ‘statutory guarantee pay’ may come into play

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