Statutory Sick Pay Guide for Employers (2011-2012)

Example - Weekly paid employee

This Sick Pay Guide is reference only. For the most up-to-date advice see the Statutory Sick Pay Guide for Employers (2012-2013)

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, that day is deemed to be a day of incapacity even though part of their shift was worked that day.

For example, an employee works a shift starting at 6.00pm on Friday and finishing at 6.00am 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 should 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 is not an incapacity, however the relationship between your employee and the deceased, such as a parent or partner, may mean that your employee may well be ill. For example, they may be suffering from shock due to the nature of death or depression/anxiety through loss. If you get a medical certificate or fit note with bereavement as the reason for not working, taking into account the employee’s circumstance, you will need to decide whether to accept this as the reason for incapacity or not. SSP will only be payable if you decide that the reasons for incapacity are acceptable.

There is an example letter you may wish to use to advise your employee that you consider they are not entitled to SSP for this reason on page 22.

Linking with Social Security benefits

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 (ESA220 or similar) or check with the Jobcentre Plus or in Northern Ireland the Jobs and Benefits Office to see if there is any ESA entitlement. This is because benefit recipients may be able to return to 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. Jobcentre Plus will advise you if this happens. You may recover a payment of SSP made to an employee who has continued entitlement to ESA 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, there is no entitlement to 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.

Since the abolition of the linking rules for Incapacity Benefit (IB) from 31 January 2011, there is no longer a requirement for employers to accept linking letters for employees who have previously been in receipt of IB. For more information see ‘New from 6 April 2011’ on page 8.

Statutory Sick Pay Guide © Crown Copyright 2011

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