The subject of sick pay can often prompt mixed emotions amongst employees. Many people feel guilty about being ill and, if there are problems with their Statutory Sick Pay (SSP), some employees are reluctant to fight for their entitlement. There are numerous scenarios where SSP is payable but there are some scenarios where it is not so clear cut.

The current rate of SSP is £95.85 per week which is payable by your employer. Assuming that you qualify; what are your statutory rights and your employer’s statutory obligations?

Who is entitled to sick pay?

If your a full-time/part-time worker or on a fixed term contract (and not self-employed) then you are likely legally entitled to SSP when you are ill. There are some conditions to this payment which include:-

• You have started work with your employer
• You have been sick for a minimum of four full days in a row (these can include non-working days)
• You have been told to isolate as a precaution against spreading COVID
• Your gross earnings are at least £120 per week
• You need to follow your employer’s sick pay procedure
• You are not in one of the ineligible categories

Agency/casual workers

The situation is not straightforward for agency/casual workers although there are scenarios where you are entitled to SSP:-

• If you take ill while on an assignment you could be entitled to SSP until the end of the assignment
• Where you have agreed to take on an additional assignment, you may also be entitled to SSP until the end of that assignment
• If you are “between assignments” you will not be entitled to SSP

Zero-hours contracts

It will depend upon the terms of your employment contract, but there is a chance that you may be entitled to SSP if you take ill while on a zero-hours contract. You will probably need to ask your employer whether you are entitled to SSP. If their explanation of your scenario does not fit with your understanding of the situation, you should consider taking professional advice.

Many people feel “guilty” asking about SSP and any additional assistance which may be available during illness. It is important to remember that asking for your statutory rights should not lead to any backlash from your employer. If you feel you have been treated unfairly, disciplined or dismissed as a consequence of your SSP enquiry, you may be able to take further legal action.

Self-isolating as a consequence of COVID

In the early days of the COVID pandemic there was a degree of confusion regarding self-isolation and statutory sick pay. Thankfully, much of the confusion has now been addressed and employee entitlement to SSP has been confirmed. When self-isolating as a consequence of COVID you will:-

• Receive SSP from the day you advise your employer, rather than from day 4 under traditional SSP regulations
• Need to clarify whether there are additional contractual sickness payments available through your employer
• Not receive SSP if you’re returning to the UK and have been instructed to quarantine by the government
• If you return to the UK and you have symptoms of COVID, you may be entitled to SSP

As a means of encouraging those who have COVID symptoms to isolate, and reduce the financial impact, you may also be entitled to additional local authority self-isolation payments. These schemes are heavily publicised by local authorities with details readily available online.

Your employer is entitled to request proof of your need to stay off work as a consequence of self-isolation/ COVID symptoms. However, they are not legally allowed to request confirmation until you have been in self-isolation for at least seven days. The NHS is able to provide an online isolation note using the following services:-

• NHS website
• NHS mobile phone app

It is safe to say that the authorities are erring on the side of caution when it comes to COVID symptoms.

SSP entitlement if you have symptoms/test positive for COVID

The process regarding SSP is fairly straightforward when it comes to a symptoms/positive COVID tests:-

• If undertaking self-isolation, your SSP payment will start on the day your symptoms began. As a consequence, it is important to act sooner rather than later if symptoms do emerge. Your initial SSP entitlement will last for 11 days.
• You will be entitled to SSP if you test positive for COVID. Payments will begin on the earliest of the day that symptoms first emerged or you received a positive test. Initially SSP payments will last for 11 days, although if symptoms continue then SSP will last until you are symptom-free.

SSP entitlement if someone in your household/bubble contracts COVID

You will automatically be entitled to 11 days SSP if:-

• Someone in yours or your childcare “bubble” either has symptoms or have tested positive for COVID.
• Someone that you live with has either tested positive or has symptoms of COVID.

The statutory 11 days SSP will be extended if the individual continues to display symptoms more than 11 days after they first emerged. There is an official guide covering COVID symptoms and the latest in self-isolation advice.

Shielding and NHS test and trace call to isolate

During the COVID pandemic a number of people in the UK received shielding letters advising them to self-isolate/restrict their movements for the good of their health. The shielding letter, and any additional advice, will stipulate the period over which you can receive SSP. It is important that you abide by the government guidance.

If you have had contact with somebody that has tested positive for COVID, the NHS test and trace system should automatically contact you. You will be formally told to self-isolate with both the start date and end date confirmed. You will receive SSP throughout this period.

Self-isolating prior to surgery

In order to restrict the spread of COVID, those about to undertake surgery will need to self-isolate for up to 14 days. Instructions will come in the form of a letter from the hospital, clarifying your self-isolation period, which you can use as proof for your employer. In this scenario you may also be entitled to additional top up self-isolation payments from your local authority.

The situation regarding SSP and any other additional payments as a consequence of COVID contacts, symptoms or positive testing, may change. It is therefore advisable to check your local authority/UK government websites for up-to-date details.

SSP and additional contractual sick pay

While there is no legal obligation for employers to supplement SSP, many will add additional sick pay to your employment contract. Therefore, it is important that you are fully aware of your contractual terms and conditions and any additional payments. There should also be specific guidance regarding the duration of additional payments and any tapering off for periods of long-term illness.

If you’re waiting for your employment contract, or there is no specific reference to additional sick pay in your contract, you can ask your employer to clarify the situation. Very often you will find information regarding sick pay and periods of sickness within the staff handbook or intranet system, if available.

List of those not entitled to SSP

While we have covered the list of those entitled to SSP, the following list shows those who are not entitled to statutory sick pay:-

• Agricultural workers
• Those in legal custody
• Armed Forces
• Self-employed
• Those already in receipt of SSP for 28 weeks, and applying again within eight weeks
• Those in receipt of Employment and Support Allowance within the last 12 weeks
• Pregnancy related illness within four weeks of the due date
• Those who have given birth within the last 14 weeks

There are situations where those traditionally deemed to be “self-employed” may indeed be classified as a worker. While clarity would be required, this can occur where you carry out activities out with your traditional self-employed services. You may also be classified as a worker if you are unable to allocate work activities to another party. This can be something of a grey area and it is important to know your rights before you begin work.

Clarifying your entitlement to SSP

There are a number of areas where due to misunderstandings, miscommunication or simple untrue myths, your entitlement to SSP may surprise you.

Pregnancy

It is important to remember that maternity pay and SSP are totally different. You are still entitled to SSP if working before your planned maternity leave. If the illness is pregnancy related then you can claim statutory sick pay until four weeks before your baby is due. After this period, your maternity leave and maternity payments will begin. The health of your baby during pregnancy comes before any work obligations. You cannot in any way be disadvantaged by your employer because of pregnancy related issues.

Your maternity payment will be calculated during an eight-week qualifying period which will take an average of your weekly wage. You will receive 90% of your gross weekly wage for the first six weeks of maternity. For the next 33 weeks you will receive the lower of £151.20 a week or 90% of your average weekly pay.

Illness and maternity leave

It is also worth noting that if you fall ill before/during your maternity pay period you will not immediately be entitled to SSP. This will only begin eight weeks after your maternity pay has ended. However, if you fall ill after your last maternity pay, you will be entitled to SSP assuming you are eligible.

Time spent in hospital

Any time spent in hospital can be concerning and in some cases traumatic. As a consequence, it is useful to know that you are entitled to SSP for the full duration of your hospital stay. You will also likely be entitled to SSP, assuming you are eligible, during any period of recuperation.

More than one employer

Many people have numerous jobs, and while SSP may on the surface seem a little complicated, it is relatively straightforward. It is perfectly feasible that you will be entitled to SSP from both of your employers, if unable to work at all. Where any illness stops you working for one employer but not the other, you may be entitled to a mix of SSP from one employer, and your normal wage from the other. In order to check that you are eligible for SSP, you need to consider each employment role in isolation.

In receipt of pension payments

More and more people are now working into their retirement while, at the same time, in receipt of state/personal pension payments. Depending upon your specific scenario, there are two potential income options:-

• If you are entitled to SSP, you will receive this as normal when you are ill
• If not entitled to SSP, you may receive additional benefits such as a pension credit or attendance allowance

Your employer should be able to advise you whether you are entitled to SSP, and if not, where you can find additional information about supplementary payments.

Trade dispute

While thankfully the majority of trade disputes are resolved as a consequence of informal negotiations, this is not always the case. So, where do you stand if you fall ill and you are involved in a trade dispute?

In the following scenarios you are still entitled to SSP:-

• You fell ill before the start of the trade dispute
• You were laid off as a consequence of a trade dispute you were not directly involved in

The situation is a little different if you fall ill while already off work as a consequence of a trade dispute in which you are directly involved. You would not be entitled to SSP. However, there should be other benefit payments available, although you would need to enquire and formally apply.

Employer refusing to pay SSP

While fairly rare, there are some situations where your employer may refuse to pay your SSP such as:-

• They “cannot afford” to pay you
• There is a disagreement regarding your eligibility

At this point it is worth noting that any additional sick pay contractual entitlement must also be fulfilled by your employer. If for some reason your employer is withholding SSP/additional contractual payments, it is important that you take advice as soon as possible.

Not entitled to SSP

If you are not entitled to SSP you will need to clarify the reasons with your employer. This information should be passed to you on what is known as a:-

• Statutory Sick Pay and an Employee’s Claim for Benefits (SSP1)

Your employer is legally obliged to give you the SSP1 form within seven days of you starting sick leave, noting your reasons for ineligibility to SSP. Assuming that they are correct, and you are not eligible for SSP, this is your only means of claiming benefits. It is also important to request the return of any doctor’s notes or other information you have supplied in connection with your illness. This information may be required when submitting your SSP1 form.

Failure to provide an SSP1

In the unlikely event that your employer is unwilling to provide you with an SSP1 form you will need to take formal action.

• Request an SSP1 form in writing and an explanation as to why you are not eligible for SSP in the mind of your employer
• If still unwilling to assist, you need to take additional advice and then contact HMRC

HMRC will contact your employer directly and request detailed reasons why you are not entitled to SSP.

You will require the following information when contacting HMRC to start a SSP dispute:-

• Full name and address
• National insurance number
• Employer’s details
• Your payroll number
• Details of your sick period
• Employer response regarding SSP/SSP1 form

It does not reflect well with HMRC if your employer is unhelpful and unwilling to assist you with regards to SSP/SSP1 forms.

Knowing your rights regarding sick pay

Whether standard SSP or a degree of enhancement in your employment contract, it is important to be aware of your remuneration outlook in the event of time off work through illness. In the majority of cases this will be relatively straightforward but, as ever, there are some exceptions to the rule. Thankfully, there are ways and means of pursuing unhelpful employers when it comes to sick pay although bringing in HMRC is a last resort.