Siobhan Harding: The lowdown on sick pay laws
Statutory Sick Pay (SSP) is the minimum amount employers must pay to employees who are off work because of illness, disability, industrial injury or disease, investigation of possible illness/disease, or are by law prevented from working in order to prevent the spread of certain infectious diseases.
SSP is paid for up to 28 weeks in any period of incapacity for work. A period of incapacity for work is a period of sickness lasting four or more days.
SSP is not paid for the first three days of sickness. These are known as waiting days.
However, if the employee has a second spell of sickness (lasting four or more days) within eight weeks, they will not have to repeat the three waiting days before getting SSP again — the periods of sickness are said to be linked. The current rate of SSP is £75.40 per week.
The employer can require notification of absence either from the first qualifying day of sickness or after a certain number of days.
Qualifying days are usually the days an employee would have worked if they had not been off sick. It is up to the employer to make these rules (or agree them with the trade union).
The rules must be notified to employees in advance. If the employer does not have any rules they must accept notification, in writing, from the employee if it is sent within seven days of the first qualifying day in the period of sickness.
For the purposes of SSP, the employer must not demand notification of absence by a particular time of day, demand notification of absence in the form of medical evidence, demand notification of absence more frequently than once a week, demand notification of absence on a specific form or refuse to accept notification of absence by someone else on the employee's behalf.
During the first seven days of sickness, the employer must not insist that the employee provides a medical certificate. However, they can ask for confirmation of sickness and the employee must provide this.
The employer may ask for a handwritten note from the employee stating what is wrong or ask the employee to fill in a form provided by the employer. This could be the employer’s own self-certification form or a form provided to employers by HM Revenue & Customs.
After the first seven days, the employer can, if they wish, ask for a medical certificate from a doctor (sick note). This need not necessarily be from the employee's GP or hospital doctor.
An employer should also consider accepting a certificate from another source, for example, an osteopath or chiropractor.
The Fixed-term Employees (Prevention of Less Favourable Treatment) (Amendment) (No.2) Regulations (Northern Ireland) 2008 came into operation on October 27.
This legislation clarifies the law regarding agency workers’ entitlement to Statutory Sick Pay (SSP). Previously agency workers with contracts of three months or less were not entitled to claim SSP but a recent decision of the English Court of Appeal (HM Revenue and Customs v Thorn Baker) has clarified the law in relation to agency workers.
From October 27 all agency workers regardless of their length of contract are entitled to receive SSP.
Further information on Statutory Sick Pay is available from your local CAB or from HM Revenue & Customs on 0845 7143 143 (Employers Helpline) or on 0845 3021 479 (Employees Helpline).