Understanding how Statutory Sick Pay (SSP) works is an important part of being a responsible employer, especially during the current COVID-19 pandemic. If you want to find out more about SSP and when to use the SSP1 form, the following guide covers the rules on employee entitlement, notice, self-certifying and fit notes, as well as the sick pay provisions due to the coronavirus (COVID-19).
What is the SSP1 form?
The SSP1 form is the form employers must complete when an employee is not entitled to Statutory Sick Pay (SSP), or when an employee’s SSP has or is coming to an end. SSP is the minimum amount of money that an employer is legally obliged to pay to an employee who satisfies the conditions for payments when they are ill and unable to work.
The SSP1 form can either be completed by the employer online and printed out to be given to the employee, or printed out and completed by hand.
Who uses the SSP1 form and when?
The SSP1 form is to be completed by the employer and given to the employee in support of an application for benefits, either where an employee does not qualify for SSP or where their entitlement to SSP has or is about to cease.
Employees may be able to apply for either Universal Credit to help them get back to work, or Employment and Support Allowance (ESA) if they are not able to work in the long-term. The information you provide on the SSP1 form will help the Jobcentre Plus make a decision on an employee’s claim for benefits.
If an employee’s entitlement to SSP is ending you must send them form SSP1 within 7 days of cessation, if it ends unexpectedly while they are still on sick leave. Alternatively, if you know an employee will be off sick before their SSP is expected to end, you can complete form SSP1 on or before the beginning of the 23rd week, allowing them to apply for ESA in advance.
If the employee does not qualify for SSP at all, the employer has to send them form SSP1 within seven days of going off work sick. The employee can appeal to HMRC if they think your decision is unfair. The SSP1 form will tell them how they can do this.
Where you terminate an employees’ contract of employment during their sick leave, and their sickness is still continuing, you will again need to give them a completed SSP1 form so they can claim ESA instead.
If you have ceased trading, you will continue to be liable to pay SSP, where any entitlement will only end once the employee’s contract is terminated. If you are insolvent, any SSP due for the period before the insolvency date is payable by you. Once you become insolvent HMRC will then pay SSP for any sick employee, as long as the employment contract has not ended.
If the employee’s incapacity continues after the insolvency date and the employee’s contract is terminated, you or the liquidator must still provide that employee with form SSP1 to enable them to claim ESA.
What are the rules on SSP?
Knowing when to complete a SSP1 form is important, not only to meet your own statutory obligations as an employer but to ensure that your employees are able to make a claim for benefits where needed. This means understanding when an employee is entitled to Statutory Sick Pay (SSP) and for how long SSP should be paid. Below we look at different aspects of the rules relating to SSP in relation to:
- Employee entitlement
- Notice
- Self-certifying
- Fit notes
Employee entitlement
An employee may be eligible for SSP if they have been absent from work through illness for four or more consecutive days, including non-working days such as weekends and bank holidays. This is known as the period of incapacity for work.
To qualify for SSP the employee will need to be earning an average of least £120 per week, where you will be paying Class 1 National Insurance (NI) contributions for them. They must also notify you of their illness within the required time.
If your employee is absent from work regularly due to sickness, these periods may count as being linked. For these periods to be linked, they must last four or more days each and also be eight weeks or less apart. An employee will no longer be eligible for SSP if they have a continuous series of linked periods that lasts more than 3 years.
An employee will also not qualify for SSP if they:
- Are getting Statutory Maternity Pay or Maternity Allowance, where there are special rules for pregnant women and new mothers who do not get these payments
- Are off work for a pregnancy-related illness in the 4 weeks before the week that their baby is due
- Were in custody or on strike on the first day of sickness, including any linked periods
Are working outside the EU and you are not liable for their national insurance contributions - Received ESA within 12 weeks of starting or returning to work for you.
Where eligible, SSP will be paid at a rate of £95.85 per week for a period of up to 28 weeks. It is paid for the days an employee normally works, in the same way as wages, for example, on the normal payday, deducting tax and NI. These are called ‘qualifying days’.
You will need to start paying SSP from the fourth qualifying day, where you would not usually pay SSP for the first 3 ‘waiting days’, unless the employee has been off sick and getting SSP within the last 8 weeks.
An employee will no longer be entitled to SSP after 28 weeks payments in a row, or for periods of sickness of 8 weeks or less apart and which are more than 28 weeks in total. You will also no longer be liable to pay SSP when the employee comes back to work or otherwise no longer qualifies, for example, their contract of employment has been terminated.
You can offer to pay the employee more under a contractual pay scheme, but you cannot pay them less than their minimum statutory entitlement. Any occupational pay scheme will need to be incorporated within their contract of employment for them to be eligible for any enhanced contractual sick pay.
Notice
To qualify for SSP the employee must notify you of their illness. The entitlement will only trigger where notice of their sickness is given in accordance with any timeframe specified under the terms of their employment contract, or within 7 days where no prior notice period has been set.
However, you cannot insist they tell you in person or on a special form. You are also not entitled to ask an employee for proof of their sickness until they have been off for 7 days, including non-working days.
You are not liable to pay SSP for any days the employee was late in telling you, unless there is a good reason for the delay.
Self-certifying
If an employee is absent from work for a period of 7 days or less, s/he is not required to provide you with proof of their illness. However, on their return to work, you can ask an employee to self-certify that they have been off sick.
An agreement will need to be reached between you and the employee as to how this will be done. You may already have a form that your company or organisation uses for this purpose or you can ask an employee to explain in writing the details of their absence, either by way of letter or email.
You can also ask the employee to complete a Statement of Sickness form (SC2) to help you decide if they are eligible for SSP where they are absent from work for 4 or more days in a row.
Fit notes
If an employee is absent from work through sickness for more than 7 consecutive days, including non-working days, they are obliged to provide you with a sick note from their GP. This is also known as a fit note. A fit note is the official document issued by an employee’s GP or hospital doctor to provide evidence about an individual’s fitness for work.
The fit note will set out the nature of the illness for which the employee has been absent from work, together with a prognosis period. It will also determine the employee’s ability to return to work and, if so, what changes may need to be made to support them in so doing, such as a phased return, amended duties, reduced hours or workplace adaptations.
You cannot withhold SSP if the employee is late in sending you a fit note.
What are the special SSP provisions due to coronavirus?
In the wake of the coronavirus pandemic the UK Government has put in place unprecedented measures to help employers and employees during this time of economic crisis. This includes special provisions where an employee is off work in consequence of COVID-19 or self-isolating because of this.
Under these provisions you can pay an employee SSP from the first day they were off work if all of the following apply:
- They were unable to work because they had coronavirus or were self-isolating because someone they live with has coronavirus
- They were off work for at least 4 days
- The period of sickness or self-isolation started after 13 March 2020
This means that if an employee is off sick or self-isolating because of coronavirus, as from 13 March 2020 you should pay SSP from the first ‘qualifying day’ an employee is off work, as long as they are off for at least 4 days in a row and meet the other eligibility criteria. If an employee was off sick with coronavirus prior to this date, you would only be liable to pay SSP from the fourth qualifying day.
Any employee who was self-isolating before 13 March because someone else in their household had symptoms does not qualify for SSP.
An employee can provide you with an isolation note from NHS 111 as proof of illness if they are self-isolating and cannot work because of coronavirus.
Reclaiming SSP
Under the emergency rules, you may be able to reclaim up to 2 weeks’ SSP that you have paid to employees in circumstances where:
- Your employee was off work because they had coronavirus or were self-isolating because of coronavirus
- The period of sickness started on or after 13 March 2020
- Your PAYE payroll scheme started on or before 28 February 2020
- You had fewer than 250 employees on 28 February 2020.
If you pay more than the current rate of SSP, you will only be able to reclaim £95.85 a week. You will not be able to reclaim SSP if your employee is off sick for any other reason than coronavirus.
Keeping records
If you want to reclaim any SSP paid to an employee who was off work because of coronavirus, you will need to keep records of payments for a period of 3 years after the end of the tax year you paid SSP.
These records will also need to include the following details:
- The dates the employee was off sick
- Those dates that were classed as qualifying days
- The reason the employee gave for being off work, ie; if they had symptoms or someone they lived with had symptoms
- The employee’s national insurance number
Can I furlough workers who are off sick with coronavirus?
If you are opting to furlough workers under the Coronavirus Job Retention Scheme – designed to help employers keep employees on their payroll by subsidising up to 80% of their wages – employees on sick leave or self-isolating should be eligible for statutory or contractual sick pay.
As such, those on sick leave or self-isolating should not be treated as furloughed under the scheme. However, once they have recovered, they may then be furloughed for any period after they would otherwise have returned to work.
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Anne Morris is the founder and Managing Director of DavidsonMorris. A highly experienced lawyer, she is recognised by Chambers & Partners and the Legal 500 UK as a trusted adviser to multinationals, large corporates and SMEs, delivering strategic immigration and global mobility advice. Anne is also an active commentator on UK immigration and HR matters.
