Statutory Sick Pay

If you are in paid work and become sick, you may qualify for Statutory Sick Pay (SSP) from your employer. You may find that your employer has opted out of the SSP scheme by providing an occupational scheme that is at least as good as the statutory scheme. It may have different rules, but they cannot be worse than those for SSP.

Who can get it?

To get Statutory Sick Pay (SSP), you must be unable to work because you are sick or disabled. You must earn at least £111.00 a week. If you don’t earn this amount, or if you’re self-employed, you cannot get SSP. You should claim Employment and Support Allowance (ESA) instead.

If you were getting ESA within the last 12 weeks, you do not get SSP. Your employer should tell you if you are not entitled to SSP by giving you form SSP1, or their own version of it. You can then reclaim ESA instead.

If you are off sick and you are not sure whether you can get SSP, you should consult an experienced adviser, for example, at a Citizens’ Advice Bureau.

Part-time workers, workers on a fixed-term contract and agency workers all qualify for SSP.

To qualify for SSP you must be ill for a period of four or more calendar days in a row (including weekends and bank holidays).

Exceptions

Certain categories of people are excluded from SSP entitlement. If you are in any of these categories, your employer must supply you with form SSP1, giving details of your exclusion, within seven days of your illness. You will need this form SSP1 if you wish to claim ESA (see page 41).

You won’t qualify if you:

• have received the maximum amount of SSP (28 weeks);

• have taken three years or more linked periods of sickness, i.e. where four or more days of sickness occur within eight weeks of each other;

• are getting Statutory Maternity Pay, Statutory Adoption Pay or Additional Statutory Paternity Pay.

Your entitlement to SSP covers any period of illness up to a maximum of 28 weeks. After this period you should be transferred to ESA if you are still off work through illness, as long as you meet the necessary contribution conditions for that benefit. If you do not meet the conditions, you may be able to claim Income Support (see page 23).

How much can you get?

SSP is a flat-rate payment with no additions for dependents. It is taxable and liable for National Insurance contributions where applicable.

The current rate of SSP is £87.55 a week. SSP is paid even if you are hospitalised. If you have a sick pay scheme at your workplace, this may pay more than the SSP rate but you will not get SSP on top. The daily rate is the weekly rate divided by the number of qualifying days (see page 38) in that week.

If your SSP combined with any other income is less than the Income Support (IS) “applicable amount” (the minimum amount that the government thinks you need to live on, see pages 77-78), you may be able to claim IS as well.

Qualifying days

You can only claim SSP for days counted as “qualifying days”. These are usually the days you normally work. Other days may be set as qualifying days in agreement with your employer if you do not work a standard week.

When to claim

To claim SSP you must have been ill for at least four days in a row, including weekends and bank holidays. The days that count for this purpose do not all have to be qualifying days. The first three qualifying days of any illness count as “waiting days” — so if you are ill for no more than four days, SSP is payable for the fourth qualifying day only.

If you have been sick for two spells or more, each lasting at least four days in a row, with eight weeks or less between them, this will be counted as one period of incapacity for work. As a result, you will not have to go through any waiting days for the second and subsequent periods of sickness.

However, if you have had a period of illness with a previous employer, this cannot be “linked” to a period of illness with your new employer. In fact, your new employer’s obligation to pay SSP may be reduced by the number of days’ SSP you have already received.

Notification rules for SSP

Your employer may ask you to follow certain rules about telling them you are off sick. They still have to pay you SSP even if you don’t follow these rules. For example, they still have to pay you SSP even if you don’t:

• provide a medical certificate until your eighth day of illness;

• phone in by a certain time of day to tell them you are sick;

• phone in more than once a week when you are off sick;

• phone in yourself or ask someone else to do it on your behalf.

You are, however, required to provide a fit note from your GP after the first seven days of sickness.

If you break the rules, you will be breaking the terms of your employment contract and eventually this could lead to you losing your job. Your employer must let you know what these rules are in advance.

How is it paid?

Employers should pay SSP in the same way as they pay wages, and on the same day on which they would pay your wages, for the period you are off sick.

If you are ill for 22 weeks, your employer must give you change-over form SSP1 in anticipation that you might be ill for over 28 weeks. This is to enable the administrative work to be completed so that ESA can begin in the 29th week (provided you fulfil the eligibility rules for that benefit). Your employer should also return any doctor’s certificate that is still valid so that it can be sent with the change-over form.

Other rules

If you are pregnant

The right to SSP technically ceases if you are on a pregnancy-related absence in the four weeks before the due date, however, in practice, an employer can choose to disregard odd days of pregnancy–related sickness absence. If you do not have a pregnancy-related illness, you can get SSP up to the day before SMP or MA is due to start.

Independent medical examination

If your employer does not believe that you are sick (even if you have evidence from your doctor), you may need to go for an independent medical examination (which can only take place with your permission) arranged through HM Revenue & Customs (HMRC) before a decision is made. The HMRC Disputes Team will then issue an informal opinion based on the evidence given by you, your employer and the results of the medical examination.

How to appeal

If your employer decides you are not entitled to SSP and you do not agree with this, the employer must give you the reasons for its decision in writing. You can appeal against this to the HMRC within six months of the refusal to pay. You will need to state the period for which you are claiming SSP and your employer’s grounds for refusing to pay. Your local Jobcentre will have details on how to make an appeal. You can write directly to the HMRC to pursue your claim if your employer refuses to provide you with anything in writing.

A claim for unpaid sick pay (SSP or contractual) should be brought in the Employment Tribunal as a claim for unlawful deduction of wages or breach of contract.

For all claims in the employment tribunal from 29 July 2013, a tribunal fee must be paid, or a completed application for fee remission must be submitted, accompanied by original supporting documents. Without the fee or remission application, the claim will not be allowed to proceed. A claim for unlawful deduction of wages carries a fee of £160 to issue the claim and a further “hearing fee” of £230 if the claim does not settle. A small minority of low-paid workers will qualify for remission. However, the remission scheme is not generous. There is both a “household capital” threshold and an income threshold. The household capital threshold is £3,000 if under 61 (£16,000 if 61 or over). From 6 April 2014, no claim can be issued in the employment tribunal unless the claimant can provide an “early conciliation certificate”. This will issued by Acas to show that compulsory conciliation has been attempted.

Changes from 2014

People off sick for more than four weeks will be offered advice to get them back to work under a new Health and Work Service covering England, Wales and Scotland. The new scheme is due to begin this year and will offer non-compulsory medical assessments and treatment plans and will be run by the private sector. It will be paid for by scrapping compensation to employers for SSP paid through the percentage threshold scheme (PTS), which currently provides some compensation to employers with high sickness levels.

The change will not affect entitlement to SSP. Employers or GPs will be able to refer employees for a work-focused occupational health assessment intended to identify issues preventing an employee from returning to work. The service will draw up a plan for the employee, their GP and their employer, recommending how they can be helped back to work more quickly.

The scheme is not compulsory and workers will be allowed to refuse to be assessed or to follow any course of action or treatment recommended. Although the TUC is generally supportive of the principles behind the scheme, it is worried that people may be forced back to work before they are well.