Statutory Sick Pay Guide for Employers

An introduction to this SSP Guide for small businesses, covering the period 6th April 2012 to 5th April 2013

Statutory Sick Pay Guide for Employers

Incapacity and deemed incapacity

General

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

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.

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.

Managing sick absence

How you record, monitor and control sickness absence is a matter for you to decide, but reducing sickness absence levels can reduce costs and increase productivity. You know your employees better than anyone else so you are in the best position to know whether repeated short absences for minor illnesses may be masking a more serious problem or some difficulty at work. Employers who have undertaken personnel or management initiatives to address such problems have seen significant reductions in sickness absence levels.

You may have reason to think that an employee who claims to be sick and incapable of work is, in fact, capable of doing their job and should return to work. If so, you may wish to have their incapacity reviewed by a doctor. If you do not have your own works doctor you can seek help from Medical Services.

If you wish to get advice from Medical Services, you should write to;

HMRC National Insurance Contributions & Employer Office
Statutory Payments Disputes Team
Room BP2002
Benton Park View
Newcastle upon Tyne
NE98 1ZZ

explaining that you are seeking Medical Services’ help about your employee. There is an example of a letter you may wish to use to advise your employee that you consider they are not entitled to SSP for this reason.

Back to work action plans

Voluntary back to work action planning has been successful in returning people to work, particularly when used as part of an early intervention in long term sickness absence.

Evidence shows that people are more likely to get back to work when they and their employers talk during periods of sickness and make plans for returning to employment. It is generally acknowledged that back to work action planning could be a powerful tool in helping people get back to work quickly when they become ill.

Their purpose is to guide a discussion and set a framework for actions that employees and employers consider when an employee has been absent from work for a period of time probably between 4 – 6 weeks. It should provide a snapshot of information at a particular time and be open to regular review.

For further advice on managing sickness absence go to:

Seeking medical advice about lengthy absences

Experience has shown that when a serious illness or injury is diagnosed, for example, serious fractures, malignant diseases, pneumonia or an operation, it is unlikely that incapacity for work will be in doubt during the period for which SSP is payable. However, having a plan that considers what steps should be taken to aid a speedy return to work would be helpful.

Sometimes illnesses may continue longer than you would expect. The list of control periods, common illnesses and abbreviations gives some of the diagnoses commonly given by doctors as the cause of incapacity on medical certificates or fit notes issued by them. Rather than specify every illness or disease, the list:

  • groups similar illnesses under one heading
  • suggests a period of absence from work after which you may wish to consider seeking advice.

Officers acting on behalf of the Secretary of State use similar guidance when considering the control of ESA.

If the employee’s incapacity for work lasts longer than would normally be expected you could decide to:

  • stop paying SSP, but you must explain your reasons to your employee
  • continue paying SSP but seek medical advice
  • accept the incapacity as genuine and continue paying SSP.

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

If you decide to seek medical advice, you may:

  • use your own medical adviser, or
  • wish to seek a report from your employee’s doctor, or
  • seek the help of Medical Services.

If your business has its own medical adviser, you should ask them to look into the matter and give their opinion as to whether the employee is incapable of doing their own job with you or not. The exact arrangements that you have with your medical adviser to deal with these cases are a matter for you to decide.

Medical Services have a contract with DWP which allows them to give HMRC advice about your employee’s incapacity for work in connection with SSP.

If you wish to get advice from Medical Services, you should write to:

HMRC National Insurance Contributions & Employer Office
Statutory Payments Disputes Team
Room BP2002
Benton Park View
Newcastle upon Tyne
NE98 1ZZ

explaining that you are seeking Medical Services’ help about your employee.

Seeking medical advice about frequent absences for short periods

There may be some occasions when your employee has repeated short periods away from work and submits either self-certificates or fit notes provided by their doctor.

If your employee has been sick for four or more short periods in a 12–month period, you may decide to seek the help of Medical Services. You can do this even after your employee has returned to work.

If you wish to get advice from Medical Services, you should write to:

HMRC National Insurance Contributions & Employer Office
Statutory Payments Disputes Team
Room BP2002
Benton Park View
Newcastle upon Tyne
NE98 1ZZ

explaining that you are seeking Medical Services’ help about your employee who has taken repeated short absences from work.

For advice on both lengthy and short absences, enclose:

  • your employee’s full name, address, date of birth, gender and NI number
  • date the latest period of sickness began and the nature of the illness certified by the doctor
  • your employee’s written consent, see the example in the right-hand column for the form of words that must be used
  • copies of any medical certificates or fit notes submitted by your employee over the last 12 months making sure the doctor’s name and address are clear. If not, ask your employee to obtain a new signature and/or address
  • your employee’s occupation and main activities involved in doing the job
  • reason for requesting an opinion
  • outcome of any control action already taken by you during the present spell of sickness
  • dates of any sick absences of at least four days over the past 12 months (details of the past two years, if known)
  • cause of incapacity given on each occasion, and
  • copies of the four or more self-certificates given by the employee.

HMRC will forward the case to Medical Services.

Medical Services will:

  • ask for a report from your employee’s doctor, and
  • if necessary, ask your employee to attend for an examination.

A report will be sent to HMRC. In addition to giving an opinion as to whether your employee is incapable of work, the doctor will say whether, in their opinion,

there are reasonable grounds for your employee having frequent absences from work for medical reasons. When HMRC receive the report, they will write to you. You will not be sent a copy of the report.

The medical report is given under contract to HMRC by Medical Services and is confidential. It can only be made available to other parties during the course of an appeal hearing when, with written consent from the employee, it is provided as evidence. If requested, the Medical Services’ doctor will attend the appeal hearing to give evidence relating to their report.

An example of written consent

Form of written consent

Name of employer . . . . . . . . . . . . . . . . . . . . . . . . .

Full name of employee . . . . . . . . . . . . . . . . . . . . .

Full address of employee . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

I agree that a medical opinion about my incapacity for work may be obtained by you from HMRC in connection with my entitlement to SSP. I agree that

my doctor may give relevant medical information to a doctor acting on behalf of HMRC and agree that, if necessary, a doctor acting on behalf of HMRC may medically examine me and send a report in confidence

to HMRC.

Employee’s signature . . . . . . . . . . . . . . . . . . . . . . . .

Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Employee refuses to give consent

If your employee refuses to give their written consent for you to seek medical advice, it is up to you to decide what to do next. You could decide that their refusal is sufficient grounds for you to doubt that the incapacity is genuine and stop paying SSP.

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

If your employee is dissatisfied with your decision, they are entitled to a written statement from you. If they

are still dissatisfied, they are entitled to seek a formal decision from HMRC.

HMRC will:

  • ask Medical Services for a copy of the medical reports they have
  • reach a decision as to whether or not SSP should be paid
  • inform both you and your employee.

Action when you get the medical advice

If, after receiving medical advice, you decide to stop paying SSP to your employee, you should explain your decision to them.

They are entitled to a written statement from you and can seek a formal decision on their entitlement to SSP from HMRC.

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

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