Sick Pay Guide for Employers

Incapacity and Deemed Incapacity


The following paragraphs explain the majority of circumstances in which such absences count, or do not count, as incapacity for work.

Part of a day’s sickness

An employee is deemed to have been incapable of work for the whole day if they arrive for work but do no work before they go sick. But if an employee has done even a minute’s work, that day cannot be treated as a day of incapacity for SSP purposes.

Shift workers

Work done in any shift that extends over midnight is always treated as done on the first of the two days, regardless of how many hours are worked before and after midnight. So, if your employee becomes incapable of work after the end of the shift, the second day, the day they finished work, is deemed to be a day of incapacity even though they have worked that day.

For example, an employee works a shift starting at 6 pm on Friday and finishing at 6 am on Saturday. If they then become sick on the Saturday that day will count as a day of incapacity for SSP even though they worked part of their shift that day.

Precautionary or convalescent reasons

Even though a person is not incapable of work they may be deemed to be incapable for SSP purposes if a registered medical practitioner states they should not work for precautionary reasons or to convalesce because they suffer from a disease or disablement and are being cared for by a doctor for that condition. Incapacity is deemed to continue as long as the doctor states that the employee should refrain from work for a precautionary reason.

Infectious or contagious diseases

An employee is deemed to be incapable of work for SSP purposes if they:

  • are a carrier of, or
  • have been in contact with an infectious or contagious disease of a kind specified in Regulation 2(3) of the Statutory Sick Pay (General) Regulations 1982 and has been issued with a statement from the appropriate medical officer advising them not to go to work.


Bereavement isn’t an incapacity itself but it does affect people in different ways. Your employee may well be ill due to bereavement, for example they may be suffering from shock or depression. But if you get a medical certificate with bereavement as the reason for not working you will need to decide whether to accept this as the reason for the incapacity or not. SSP will only be payable if you decide that the reasons for incapacity are acceptable.

Supported or permitted work for occupational or medical reasons

If an employee returns to work for you, for example, on a part-time basis for medical or occupational reasons, the days they work for you cannot be treated as days of incapacity for SSP purposes.

For information about the rules concerning supported or permitted work go to or contact your local Jobcentre Plus Benefit Delivery Centre.

Welfare to work beneficiaries

Under the Government’s Welfare to Work Programme, some employees are entitled to return to benefits for up to 104 weeks after starting or resuming work for an employer.

You should check with all new or returning employees to see if they have a linking letter (BF220 or similar) or check with the Jobcentre Plus or in Northern Ireland the Jobs and Benefits Office to see if there is any IB entitlement. This is because ‘Welfare to Work’ beneficiaries are able to receive Social Security benefit payments during the first 104 weeks of starting or returning to work and therefore are not entitled to SSP.

If you have paid SSP to a person who is entitled to reclaim benefit, SSP will have been wrongly paid. You may recover a payment of SSP made to a ‘Welfare to Work’ beneficiary who has continued entitlement to Incapacity Benefit, as overpaid wages. You must make good any erroneous recovery made under the Percentage Threshold Scheme (PTS), in the same way as you would correct any other incorrect payment or recovery of SSP.

Each linking letter bears a date and the instruction that if the employee is sick again before this date, they cannot get SSP. This is because of a ‘link’ with benefit. So you must fill in form SSP1 to show why you cannot pay SSP, and send or give it to your employee.

Employee pregnant – the disqualifying period

Women who are entitled to Statutory Maternity Pay or Maternity Allowance are not entitled to SSP during their Maternity Pay Period (MPP) or Maternity Allowance Period (MAP). The MPP or MAP is a period of 39 weeks during which SMP or MA is payable.

If your employee is not entitled to SMP or MA and is not already receiving SSP, she cannot get SSP for 18 weeks starting with the earlier of the beginning of the week in which her baby is born, or the beginning of the week she is first off sick, either wholly or partly because of her pregnancy, if this is on or after the start of the 4th week before her baby is due.

If your employee is receiving SSP her entitlement will end on the earlier of:

  • the date on which her baby is born, or
  • the day she is first off sick, either wholly or partly because of her pregnancy, if this is on or after the fourth week before her baby is due.

Where a PIW doesn’t start until after the end of the disqualifying period, SSP should be considered under the normal rules for that PIW.

Where a PIW started before, or during the disqualifying period, SSP will not become payable until there has been a break of at least eight weeks after the end of that PIW, that is, until a new, unlinked, PIW is formed. For example, if your employee phones in on the day she is due to start work after her MPP or MAP has finished, she could be entitled to SSP if she meets the other qualifying conditions. However, if your employee phoned in during the last week of her MPP or MAP and said that she would not be able to return to work because she was ill, she would be disqualified from SSP throughout that PIW.

For more information about SMP and conditions of entitlement, see Employer Helpbook E15 Pay and time off work for parents.

Twenty eight weeks SSP reached in a PIW

Each time your employee begins a new PIW that doesn’t link, that is, it is separated from the previous PIW by a gap of more than 56 consecutive days, your maximum liability to pay SSP is 28 weeks at the appropriate weekly rate. If SSP is stopping because your employee:

  • has been, or will be, paid 28 weeks SSP in the PIW, and
  • is still sick you must issue SSP1.

Sick employee leaves

You stop paying when a sick employee leaves your employment and you must issue form SSP1 without delay.

You must also issue form SSP1(L) if the employee requests it.

Employee in legal custody

An employee who is in legal custody at any time on the first day of the PIW cannot get SSP.

Entitlement will stop for an employee who is already receiving SSP if they are taken into legal custody.

Legal custody means:

  • being kept in custody by the police
  • being in prison.

Legal custody does not include helping the police voluntarily with their enquiries.

Remember linked PIWs count as one. It is the situation at the start of the first PIW with you that counts when you are deciding whether you can pay SSP.

Employee involved in a trade dispute with you

If your employee is off work because of a trade dispute on the first day of the PIW they cannot get SSP unless:

  • they have no direct involvement in the dispute, and
  • they did not take part in it at any time up to and including the first day of the PIW.

If they go sick again, for four or more days in a row, within 56 days of their return to work after the dispute, you will need to issue form SSP1 to them so they can claim IB.

If they are off sick when the trade dispute starts, they will continue to be entitled to SSP only if they take no active part in the dispute.

Employee dies

If your employee dies, SSP is due up to and including the day of death and stops from the day following their death.

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