With the Coronavirus Job Retention Scheme (CJRS) getting all the publicity, quite rightly, it’s easy to forget about the announcements regarding Statutory Sick Pay (SSP):
- On 03 March 2020, Prime Minister Boris Johnson said in the House of Commons that COVID-19 related SSP would payable from day 1 rather than day 4 for ‘normal SSP’. This was confirmed in a press release the following day
- Budget 2020 on 11 March 2020 confirmed the above and announced that employers with fewer than 250 employees would be able to recover the first 14 days of COVID-19 SSP
So, there are two issues that have been bubbling away in everyone’s background for a number of weeks:
- SSP from day 1 and
- SSP reclaim
Importantly, the underlying rules with which we are all so familiar have not changed. For example, there is still the requirement for the formation of a Period of Incapacity for Work (PIW) and the maximum entitlement is 28 weeks in any PIW or series of linked PIWs.
I want to try and bring people up-to-date on where we are with these issues. However, several pieces of legislation have happened in the meantime:
The two governing pieces of legislation (the Statutory Sick Pay (General) Regulations 1982 and the Statutory Sick Pay (General) Regulations (Northern Ireland) 1982 needed updating if more people were going to be brought into the category of being incapable for work under their contract of employment.
The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 and the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations (Northern Ireland) 2020 came into force on 13 March 2020. Anyone isolating in accordance with advice at this time was brought into the SSP regime.
The Statutory Sick Pay (General) (Coronavirus Amendment) (No 2) Regulations 2020 and the Statutory Sick Pay (General) (Coronavirus Amendment) (No. 2) Regulations (Northern Ireland) 2020 amended the above to change the effective date of isolating from guidance given on 12 March 2020 to guidance given on 16 March 2020.
The Statutory Sick Pay (General) (Coronavirus Amendment) (No. 3) Regulations 2020 and the Statutory Sick Pay (General) (Coronavirus Amendment) (No. 3) Regulations (Northern Ireland) 2020 brought people advised to shield into the SSP regime. As long as they were doing this in line with guidance issued by the relevant health body in the nation in which they were living.
SSP from Day 1
Having brought more people into the category of being unable to work under their contract of employment, now came the task of getting rid of the three Waiting Days. As long as I can remember, it was the Social Security Contributions and Benefits Act 1992 (section 155) and the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (section 151) that both said ‘SSP shall not be payable for the first three qualifying days in any period of entitlement’. That needed to change if SSP was going to be payable from day 1.
Bring on the Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020 and the Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations (Northern Ireland) 2020. Both pieces of legislation say that 3 Waiting Days do not apply if the absence is because someone is self-isolating or shielding in line with public health guidance.
The guidance on Gov.UK about reclaim was first published on 03 April 2020. Right at the top comes the message:
The online service you’ll use to reclaim SSP is not available yet. HMRC will announce when the service is available and this guidance will be updated
Which all seems amazing given that the CJRS was announced on 20 March 2020, is much more complicated yet is in action with employers receiving reimbursements. Understandably, civil servants at HMRC have been concentrating on this. Even so, there is a long period of time between the initial announcement, the Budget and today’s date. We are looking at something extraordinarily less complicated – or so says my simple mind.
However, there have been a couple of recent developments:
Who can use the scheme?
There are three basic conditions:
- The employee is one who is eligible as a result of self-isolation, shielding or sickness due to coronavirus
- The PAYE payroll scheme was created and started on or before 28 February 2020
- On 28 February 2020 there were less than 250 employees
A clarification is that the 250 employee threshold is for an employer. Therefore, as with Employment Allowance eligibility, connection will be a consideration.
28 February 2020 is one of the relevant dates in the CJRS legislation. However, 19 March 2020 is the other relevant date. Do watch for the 28 February 2020 date to be amended, possibly.
The European Union State Aid Temporary Framework
Although the UK is not in the European Union, we are still bound by its rules until the end of the transition period (which the UK Government maintain will end on 31 December 2020).
Rules say that any monies given by a public body (i.e. the UK Government in this case) will count as State Aid, meaning that the monies could be seen to put the company in a more advantageous position to trade (over a company doing the same activity but not receiving monies). Reclaims of SSP will be classed as State Aid.
However, a ‘Temporary Framework’ (x) was put in place by the European Commission allowing an additional €800,000 support value to be given (€100,000 for the agriculture sector and €120,000 for the fisheries sector). Temporary Framework State Aid will be classed as qualifying State Aid, as long as the values are not exceeded.
Employers will have to watch that their total claim does not exceed that allowed for their sector – once HMRC provide an exchange rate that should be used to convert Sterling into Euros.
But what’s astonishing is…
So, that is people up-to-date but the important piece of the puzzle remains missing – how do employers go about making the recovery?
A few weeks ago we had never even heard of terminology that we are using now as commonplace. Such as:
- SSP reclaims (rack your memory as to when we did that last)
- Furloughing (I had never heard of it)
- Self-isolation (I thought it was just being a miserable person)
- Coronavirus (I won’t rush to drink that beer again!)