If an employee is unfit for work, by law, they may be entitled to statutory sick pay (SSP). This is the minimum amount of money an employer is legally obliged to pay to an employee who satisfies the conditions for payments when injured, unwell or required to self-isolate.
The following guide for employers looks at how SSP works, including the daily rate of pay, and the employee’s responsibilities in reporting sickness absence and providing fit notes. We also briefly examine the employer’s additional responsibilities when dealing with a sick employee.
Who is eligible for SSP?
For an individual to be eligible to claim SSP, they must be incapable of working by reason of either illness or injury. They must also satisfy the following criteria:
- be classed as an employee
- have already undertaken some work for you as their employer
- be earning an average of at least £123 per week on average, before tax
- have been ill, injured or self-isolating for 4 consecutive days, including non-working days.
Whether someone is classed as an employee will primarily depend on whether they’re working for you under a contract of employment.If someone is self-employed and working for you on a freelance basis, they will not be entitled to SSP. However, certain groups of workers may be classed as employees for the purposes of SSP, including casual, short-term and zero-hours contract workers, provided they meet the other qualifying conditions.
There are some exceptions to the entitlement to SSP, for example, where an employee is in receipt of statutory maternity pay. There are different rules for pregnant women and new mothers in this situation. There are also other limited exceptions, although in most cases, provided the basic eligibility criteria are met, you will need to pay SSP.
When does sick pay entitlement start?
Where an employee qualifies for SSP, their sick pay entitlement will usually run from day 4 of their sick leave. This means that the employee will get SSP for every day they normally would have worked, except for the first 3 days. These are known as waiting days. If part of a day is worked before an employee goes home sick, this will not be counted as a sick day.
How much is SSP per day?
If an employee is eligible for SSP, this is paid at a rate of £109.40 per week (from April 2023), in the same way as their normal wages, for example, weekly or monthly. However, you can use a daily SSP rate if your employee isn’t off work for complete weeks. The daily rate will depend on how many days your employee usually works, known as qualifying days, as well as how many days they’re off sick and whether the 3 waiting days need to be deducted.
For example, if an eligible employee is off sick from the Monday to the Wednesday of the following week, where their contracted days are Monday to Friday, their period of sick leave is a total of 7 qualifying days. As they’re not entitled to be paid for the first 3 days, they will be eligible for SSP for 4 days. To calculate SSP, you’ll need to take the weekly rate of £109.40, divide this by the number of qualifying days in a week and multiply by the number of days for which an employee is entitled to SSP (£109.40/5 x 4).
An employee may instead be eligible for sick pay under an occupational scheme, although any contractual entitlement cannot be less than the statutory minimum.
How long is SSP paid for?
Once SSP becomes payable, the employee’s statutory entitlement will continue for a period of up to 28 weeks, provided they continue to be unfit for work.
However, if an employee has regular periods of sickness, they may count as linked. Linked periods mean that SSP entitlement will be used up gradually. To be linked, the periods must last at least 4 days each and be 8 weeks or less apart, so if someone is off for 4 weeks and is unwell again within 56 days of returning to work, they’ll have 24 weeks of SSP left. If a series of linked periods lasts for more than 3 years, the employee will no longer be eligible for SSP.
What is form SSP1?
Form SSP1 is the form employers must complete when an employee is not entitled to SSP, or when an employee’s SSP has come or is coming to an end. This can be completed online and printed out to be given to the employee, or a blank copy printed out and completed by hand.
If someone who works for you is not eligible for SSP, or they’ve exhausted any SSP entitlement, form SSP1 will be needed to support any claim for benefits. Employees may be able to apply for either Universal Credit to help them get back to work, or Employment and Support Allowance if they’re not able to work in the long-term. The information you provide on the SSP1 will help the Jobcentre Plus make a decision on an employee’s claim.
If your employee doesn’t qualify for SSP, you must provide them with form SSP1 within 7 days of them going off sick. If their SSP is ending, you must provide them with their SSP1 either:
- within a period of 7 days of their SSP coming to an end, if it ceases unexpectedly while they’re still unfit for work
- on or before the beginning of the 23rd week, if their SSP is expected to end before their sickness does, allowing them to apply for benefits in advance.
Do employers have to pay sick pay?
For the obligation on the employer to starting paying sick pay, the employee must inform them of their incapacity for work within any deadline set by the business or within 7 days. This means that the sick pay entitlement will only trigger where notice of an employee’s sickness is given in accordance with the timeframe specified under the terms of their employment contract, or the provisions of any sickness policy, or within one week at the very latest.
You cannot insist that an employee informs you of their illness or injury in person or by using a special form, although if they’ve been sick for 4 or more days in a row and want to claim SSP, ideally they should be asked to complete form SC2. The information contained in the form will help you to decide if the employee is entitled to SSP.
If an employee fails to tell you of their illness or injury within the required time, you will not be liable to pay them SSP for any days that they were late in telling you, unless they can provide a good and credible reason for their delay. However, if your employee is sick for more than 28 weeks, you’ll have to pay any withheld amounts by the end of their entitlement.
Contractual sick pay
Some employers offer their workforce enhanced rates of sick pay through a contractual sick pay (CSP) scheme as a company benefit.
Under CSP, the employer sets the rate of contractual sick pay, whic should be stipulated in the employemnt contract or staff handbook, but it cannot be less than the relevant statutory sick pay level. CSP may also be available from day one of illness, rather than day 4 under the SSP rules.
Do employees have to provide fit notes?
If an employee is genuinely unfit for work due to illness or injury, they will be entitled to time off although, depending on the length of their absence, they may need to provide a fit note certifying their inability to work. A fit note will usually be provided by the employee’s GP or hospital doctor although, with your agreement, a similar document can be provided by a physiotherapist, podiatrist or occupational therapist. However, the obligation on an employee to provide proof of their illness or injury from a qualified medical professional only arises if they’ve taken sick leave and have been ill or injured for more than 7 consecutive days.
The employee’s fit note will set out the date on which they were clinically assessed, the nature of their condition, when they’re likely to recover or whether they will need to be reassessed. If the employee continues to take sick leave beyond the period set out in the fit note, they will need to provide you with further notes until they’re fit to return to work.
You cannot withhold SSP where an employee is late in giving you a fit note, as this could be because they’re unable to get an appointment with their doctor. Your employee must continue to tell you of ongoing sickness, and you can withhold SSP if there are any days for which you haven’t been told, but not for late medical evidence. However, the employee should be warned that any unauthorised absence from work, as a result of their failure to provide a fit note, could result in disciplinary action being taken against them.
If an employee is unfit for work for 7 calendar days or less, there’s no obligation on them to provide a fit note, but you can ask them to self-certify on their return to work. This means that the employee must provide a written explanation of their absence, either by email, or by completing form SC2 or your organisation’s own self-certification form. In circumstances where an employee is self-isolating, they will need to provide an isolation note, or notification from the NHS, that they’ve come into contact with a positive COVID case.
What other duties does an employer have to a sick employee?
When paying SSP, this merely covers the minimum statutory responsibility in financial terms that an employer has towards an employee who is deemed unfit for work. However, the employer’s legal and moral obligations towards an employee extend much further than this, especially where an individual is on long-term sick leave, including:
Keeping in touch
An employer is under a statutory duty to ensure the health and welfare of its employees, including their emotional wellbeing. This means that it’s important to keep in touch, especially during prolonged periods of absence, to ensure that an employee doesn’t feel isolated and is kept informed of any important developments at work;
Discussing any reasonable adjustments
Employers are under a legal duty to make reasonable adjustments for any employee suffering from a disability. However, even if an employee is not “disabled” following long-term illness or injury, there may still be a number of steps that can be taken to facilitate their return to work, for example, amended duties, workplace adaptations and altered hours. The employee’s fit note may contain certain advice as to what steps can be taken to support their re-introduction into the workplace.
Occupational health specialist referral
In cases where an employee is assessed as fit for some work, but the employer and employee cannot agree on what adjustments to make, an assessment by an occupational health specialist can provide both parties with invaluable insight into the ways in which an employee can be supported in the context of their job role and any ongoing symptoms.
Need assistance?
In cases where a dispute has arisen as to an employee’s entitlement to SSP, or any other employment rights during a period of sick leave, expert legal advice should be sought as soon as possible. In most instances, any problems can be resolved without recourse to legal proceedings, whilst maintaining a positive working relationship moving forward.
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.
