Sickness issues and SSP

1.1 Employers have to pay sick pay to those employees who are entitled to it (see 3) from the fourth 'qualifying day' of sickness.

• The first SSP payment must be on the next - or, at the latest, the second - pay day after the sick leave.

1.2 Many employers choose to pay higher levels of sick pay, well above SSP.

1.3 You can opt out of SSP requirements if your company's sick pay arrangements are more generous than the legal minimum.

• You must keep detailed records.

2.1 As long as an employee qualifies for SSP (see 3), it is paid at a flat rate of £85.85 a week.

• SSP is payable for a maximum of 28 weeks for any one period of sickness, and is subject to income tax and employees' National Insurance contributions (NICs).

  Employers must issue Form SSP1 by the end of the 23rd week to let the employee know when SSP will be ending.

2.2 Employees become entitled to SSP from the fourth 'qualifying day' of sickness onwards.

A qualifying day is basically a day on which the employee would normally have worked.

• In practice, the rule means that there are usually three clear 'waiting days' before SSP is payable in any 'period of incapacity for work' (PIW).
• If the employee is sick on a weekend day or a Bank Holiday - or any other non-working day - this counts towards the four-day PIW, but is not a 'qualifying day'.

2.3 Employers must keep full records of SSP.

• Records must be kept for three years.
• Failure to do so can lead to a £1,000 fine.

2.4 You can get money back from HM Revenue & Customs (HMRC) if the SSP you pay out exceeds a set level.

• If your SSP exceeds 13% of your gross NI contributions in any month (which is unusual), you can reclaim the extra in full.

  You do this by deducting the amount first from your NI payments and then from the PAYE you are due to pay.

3.1 You must pay SSP to any employee who is unfit for work.

• There is no qualifying length of service or minimum number of hours a week.

3.2 The employee's earnings must be over the NI lower-earnings limit of £107 a week.

3.3 You can withhold SSP if the employee:

• Has recently drawn a state benefit (such as sickness, incapacity or maternity benefit).
• Is held in custody.

4.1 Tell employees they (or someone else) must notify you by telephone that they are sick by, say, 10am on the first day.

4.2 Ask employees who are off sick for less than seven days to fill in a self-certification form, giving the reason for their absence.

• Insist on a specific description - eg food poisoning, rather than upset stomach. One of the things you want to be able to track is whether it is the same as last time.
• You can design your own form, or use self-certification form SC2 from HMRC (). Form SC2 does not say that giving false information is a disciplinary offence and has no place for a supervisor to sign, which you may want to include.

4.3 Interview employees who have been off sick for a specified period of time (eg seven days) on their return.

• There may be things you can do to prevent a recurrence of the ailment. For example, providing better seating for an employee with back problems.
• Return-to-work interviews are the first line of defence against abuse of the system.

4.4 Ask for a doctor's certificate for periods of sickness of more than seven days.

The 'fit note' indicates whether an individual:

• is not fit for work.
• may be fit for work.

A 'may be fit for work' statement would be given if the doctor believes your worker's health condition may allow them to work, if you give them appropriate support.

5.1 Be on the alert for lots of short absences.

• Repeated absences involving Mondays and Fridays may be particularly significant.
• People who work too many hours, for whatever reason, tend to be off sick more.

5.2 A pattern of absences coinciding with major sporting events may be suspicious.

5.3 A combination of frequent lateness and one-day absences demands investigation.

• The employee may have continuing difficulties at work, or at home.
• There may be chronic health problems that need to be addressed.

Whichever it is, you need to know. Consider providing counselling, instead of embarking on the formal disciplinary procedure.

6.1 Create a good working environment.

• Invest in ergonomically sound furniture, lighting and equipment.
• Enforce health and safety standards.
• Encourage teamwork, contact between people and positive motivation.

6.2 Move sick or injured employees to other duties which will not affect their condition.

6.3 Since April 2010 the traditional doctor's sick note has been replaced by a 'fit note' (see 4.4).

If a doctor has stated that your employee 'may be fit for work', they can offer suggestions about simple and practical adjustments you could make to help your employee return to work.

7.1 Spell out, in your disciplinary procedure, the consequences of wilful absenteeism.

• Any procedure must be seen to be fair, objective and consistently applied.
• If you discover that an absentee has not been genuinely ill, you will probably wish to activate your formal disciplinary procedure.
• This could eventually lead to sanctions (eg loss of benefits), or even to dismissal.

  If you dismiss, you may have to be able to satisfy an employment tribunal that the dismissal was fair (see 9).

7.2 You can withhold SSP if you reasonably suspect an employee is not ill.

7.3 If you want to stop paying SSP to an employee after four or more absences in a year, seek an adjudication from HMRC's Medical Services.

• Write to your local HMRC office enclosing the employee's written permission for Medical Services to become involved and any medical certificates the employee has supplied.
• If the employee refuses to give permission, this may be grounds to stop SSP.
• Medical Services will get a report from the employee's GP, and may conduct its own examination, before deciding if SSP can be withheld.
• If Medical Services decide that an employee has grounds for their continuing absence, you should continue (or reinstate) SSP.
• If the advice is that the employee can work, you can choose not to pay SSP, but must explain why.
• If the employee is dissatisfied, they are entitled to a written explanation. If they are still dissatisfied, they can seek a formal decision from HMRC, who will obtain the medical reports from Medical Services.

  Once HMRC has decided whether or not SSP should be paid, they will inform both you and the employee.

7.4 Always tell employees if levels of sickness absence are putting their jobs at risk.

7.5 If the disciplinary procedure is invoked, make it clear that it is the repeated absence from work, and thus the employee's 'capability' to do the job, that is causing the problem.

• If the process ends in dismissal and a tribunal hearing, it is much easier to justify dismissal on grounds of lack of capability than to get involved in arguments about whether illnesses were real or not.

8.1 Do not abandon an employee who is on long-term sick leave. Arrange progress reports and home visits.

• Make the employee aware of his or her position. Just knowing there is a job to come back to can help people's recovery.

8.2 After a long time away, an employee may feel fear about returning.

• Suggest a staged return to work, on a part-time basis, building up to full time.

8.3 Explore the possibility of alternative duties.

• Could the employee come back and do lighter work?

8.4 If a return looks unlikely after a long illness, consider offering early retirement, perhaps with enhanced pension arrangements.

8.5 If dismissals resulting from long-term sickness involve people with disabilities, they must be for 'a substantial and material reason'.

• It may not always be obvious what is a disability and what is not.

  Long-term health problems, including asthma and ME, can be regarded as disabilities.

• You are under a positive duty to make reasonable adjustments to the job, or the way it is done, to stop a person with disabilities being at a substantial disadvantage.

9.1 You can dismiss a sick employee at any time when it is reasonable to do so.

• In established companies, this may mean waiting for the full 28-week SSP period.
• In a small firm where a gap in the ranks could threaten the business, it might be reasonable to dismiss sooner.

9.2 You will need to have gathered all the facts, including full medical information, to show that the dismissal is reasonable.

9.3 Contact the employee's GP, with his or her permission, and get a medical assessment.

• The employee has the right to refuse permission, or to see the doctor's report and to request amendments to it.

  In case of doubt, ask the employee to agree to an independent examination.

• If you get no co-operation, explain that a decision will be taken on the basis of available information, which may result in dismissal.

9.4 If there is no serious prospect of an eventual return to work, explain to the employee that the job can no longer be kept open.

9.5 Confirm the dismissal, giving the appropriate written notice and the appropriate pay.