Covid-19 and the New Statutory Sick Pay Rules - what we know so far

27th March 2020 Employment

Feeling overwhelmed by all of the changes in response to Covid-19? Don’t worry – you are not the only one. We know that many businesses are struggling to sort the fact from the fiction and that there is a lot of speculation about the government’s changes.

To help alleviate the confusion, this blog forms part of a series of blogs that will focus on helping businesses deal with topical legal issues, understanding what the latest legal changes are and what has been confirmed so far. This blog looks at the statutory sick pay (SSP) changes in particular, but please see JMW’s website for other blogs that you may find helpful too.

Current SSP Regime

As you may know, the statutory sick pay (SSP) rules are set out in the Social Security Contributions and Benefits Act 1992 and the Statutory Sick Pay (General) Regulations 1982.

Employers must pay SSP to all eligible employees who are working under a contract of employment, when they are unable to work due to sickness or incapacity. Just to confirm, “employees” in this context extends to a wider category than normal and includes those whose earnings are liable for Class 1 National Insurance contributions – this means workers can be included.

The Social Security Contributions and Benefits Act 1992 (SSCBA) currently specifies a period of three qualifying days (i.e. the so called ‘waiting period’) during which SSP is not paid. SSP is only currently payable from the fourth qualifying day. Waiting days do not necessarily correspond to the first three calendar days of sickness, but are normally agreed in the contract with the individual.

To qualify for SSP, a person must earn at least £118 in average weekly earnings based on the previous eight weeks of employment and meet certain other requirements. The current rate of SSP is £94.25 per week and this is payable for up to 28 weeks during a period of incapacity for work or a series of linked periods. The rate will increase to £95.85 per week from 6 April 2020.

What has already been changed by the government in response to Covid-19 then?

Under the SSP legislation, a person is now deemed to be ‘incapable’ of working if he or she is isolating in line with official government guidance. This means a person need not necessarily be sick or indeed exhibiting symptoms to receive SSP.

According to new regulations formally introduced on 28 March 2020, the government has removed the waiting days for Coronavirus-related incapacity and SSP is now payable from day one. The change is applicable to those with symptoms or self-isolating in line with official guidance. SSP will be back-dated to 13 March 2020.

What is the government due to change in the future in response to Covid-19?

The government has confirmed that it will refund SSP for small employers (those with less than 250 employees) covering a period of up to 14 days.

When will these extra changes come into force?

Although the Coronavirus Act 2020 received Royal Assent on 25 March, this only gives Ministers the power to make appropriate regulations to implement the above.

There is no current mechanism through which businesses can claim a refund of SSP. This is due to be up and running in the near future, however, the government has not announced a timeframe yet.

Key questions and our responses and views

Are temporary workers counted in the number of ‘employees’ for small businesses – I am a recruitment business that has 20 employees in the office but I engage over 250 temporary workers – will I be reimbursed SSP?

As mentioned above, the government will only refund SSP for small employers (those with less than 250 employees) for up to 14 days – it is not clear what the government means yet by this and we are waiting for clarification of that point. However, given that workers can be covered by the SSP legislation and payment system then it would seem logical that workers would be counted within this number, however, this has not yet been categorically confirmed.

Are self-employed persons now covered by the SSP legislation and the other changes that the government wants to make?

It seems the new SSP regime for Covid-19 will continue to apply to all employees, including “employed earners”, i.e. agency workers, and other types of workers that work under a contract of employment.

From reading comments made by the government, we understand that self-employed people will not benefit from the new scheme and are instead being told to claim under existing benefits programmes, e.g. universal credit. This is the position at the date of writing (30 March 2020).

Where an employer sends an employee home from work to self-isolate, what pay are they entitled to?

This would depend on the circumstances but generally if the employee is able to continue to work from home then, subject to any contractual provision to the contrary, they should receive their normal rate of pay.

What about those people identified as at high risk in the ‘shielding’ guidance issued on 21 March, do they get SSP?

As above, if the employee is able to continue to work from home, then they should receive their normal rate of pay. The guidance applies to those individuals considered to be at a particularly high risk if they contract Coronavirus, due to pre-existing conditions. Our interpretation of the guidance, is that those individuals who have been identified and have received a text message from the government and decide to stay at home for 12 weeks, should be considered self-isolating in line with official guidance. As such, if they are unable to work from home, they should be paid SSP.

The text message notifications are likely to be sufficient evidence for self-certification purposes, however, employers should use their own discretion if additional evidence is required, especially where they doubt the authenticity of the text message. If there are any suspicions, corroborative evidence may be requested from the employee.

If you need advice or have any queries about dealing with any workplace issues arising from the COVID-19 outbreak, please contact Paul Chamberlain or another member of the employment team at JMW Solicitors LLP on 0345 646 0342. 

This note is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.

JMW Solicitors is a Limited Liability Partnership.The copyright in this note is owned by JMW. Any reproduction of this article should be credited to JMW. All rights reserved.

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Emma James is a Senior Associate located in Manchesterin our Employment department

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