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8. Sick pay and sickness absence
[ch 8: pages 278-279]An employer must provide employees with details of their sick pay entitlement as part of the written statement of employment particulars. This must be done within two months of the employment start date. For the time being, sick pay rules need not be included in the written employment contract. Instead, they can be recorded in a separate document given to the employee. The rules that apply to the written statement will be tightened from April 2020. See Chapter 3, page 74.
Many employers provide occupational sick pay that is more generous than statutory sick pay (SSP). Employees who are not entitled to occupational sick pay but who meet the qualifying criteria for SSP are entitled to SSP of £94.25 per week (2019-20) for a maximum of 28 weeks. To receive SSP, an employee must earn an average of at least £118 a week (2019-20), known as the Lower Earnings Limit.
Agency workers who meet the qualifying conditions are entitled to SSP from day one of their contract. Whichever party is responsible for deducting National Insurance from their pay is responsible for paying their SSP.
SSP normally increases annually each April in line with the Consumer Prices Index (CPI). It is paid by the employer in the same way as wages. Since April 2014, employers can no longer reclaim from HMRC the SSP they pay out.
Anyone who is not entitled to SSP may qualify for Employment and Support Allowance (ESA) or its equivalent in Universal Credit, or for Personal Independence Payments (PIP), the state benefit which has been gradually replacing Disability Living Allowance (DLA). Someone with a long-term work-related illness or injury may also qualify for Industrial Injuries Disablement Benefit.
For information on state benefits, see the LRD Booklet: Universal Credit — a guide for union reps and workers (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1970.)
For more detailed information about SSP, see the LRD Booklet: Sickness absence and sick pay (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1951).
Proposals to reform SSP and Fit Notes
The Taylor review, published in July 2017, proposed significant reforms to SSP. Taylor wanted SSP to become a “Day One” right for all workers, regardless of income, to be accumulated over the course of the year like paid annual leave. He also suggested a right to return to the same job following long-term ill-health absence. The government agreed to consider these ideas as part of its overall review of sick pay provision.
In a DWP report, Improving lives, the future of work, health and disability (November 2017), the Department for Work and Pensions (DWP) says it too wants to reform the SSP system to “support more flexible working” such as phased returns to work, including spacing out working days during a phased return. There will be further consultation on these and other proposals in the DWP report.
Meanwhile, a government review of the Fit Note has concluded that the Fit Note is not being used effectively as a means of “enabling conversations” about how people can return to (or stay in) work. Only 6.6% of Fit Notes use the “may be fit for work” option. Here are the government’s main ideas for reform of the Fit Note:
• extending Fit Note certification powers to other healthcare professionals as well as GPs;
• designing a set of “competencies” for professionals tasked with completing Fit Notes;
• investigating whether, for the purposes of SSP, employers can use an Advisory Fitness for Work Report (which can be completed by some Allied Health Professionals, who work for specialist organisations in physiotherapy, occupational therapy and podiatry) instead of the Fit Note;
• improving GP training on the Fit Note, including occupational health training;
• investigating whether clinical guidelines for workplace adjustments can be developed for the top five clinical reasons why people are off sick or on health-related benefits; and
• looking at the role of Fit Notes in supporting return-to-work discussions with management.
In January 2018, the UK's statutory sick pay regime was condemned by the European Committee of Social Rights (ECSR) as "manifestly inadequate" and "not in conformity" with the country's obligations under the European Social Charter.
According to the government’s Good Work Plan, published in December 2018, the government is considering introducing state enforcement of unpaid SSP for “vulnerable” workers, along the lines of the current regime of state enforcement of the National Minimum Wage.