Post-it note with wording Statutory Sick Pay

13/04/2022

The statutory sick pay (SSP) rules temporarily changed during the pandemic to accommodate workers who were legally required to self-isolate.

This requirement was, however, removed when the relevant provisions in the Coronavirus Act 2020 expired on 24 March.

To be eligible for SSP an employee must now actually be sick or incapable of work. Therefore, those who are asymptomatic or only have mild symptoms are no longer eligible for SSP even where they have tested positive.

Prior to 24 March temporary changes to SSP saw incapacity rules extended to cover those required to self-isolate, either because they:

  • had Covid-19 symptoms,
  • tested positive for Covid-19,
  • were living with someone who had Covid-19 or
  • were shielding.

Under the SSP Rebate Scheme, employers with less than 250 employees could reclaim SSP paid in respect of the first 14 days of a Covid-19 related absence.

In most cases the first three days of sick leave are considered to be a ‘waiting’ period and go unpaid but during the pandemic, those who tested positive or had to self-isolate were paid SSP from day one if they had to isolate for at least four days.

Post 24 March there is no legal requirement for individuals to self-isolate and first day SSP has been scrapped and moved back to day four.

It is possible that an employer may still want a worker to stay away from work if they have Covid-19 or have been in close contact with someone who has the virus, given the employer’s duty to protect the health and safety of other employees.

In these circumstances, if an employee is unable to work from home, it is likely that they will have the right to receive full pay on the basis of the employer’s duty to pay wages. The exception here could be casual workers who contractually have no entitlement to be provided with work and, therefore, have no entitlement to pay if the employer avoids giving them work due to fear of possible infection.

What if an employee refuses to attend work due to fears over Covid-19?

If an absence is unauthorised, it is unlikely the employee would be entitled to pay. Employers should be sympathetic to staff concerns and anxieties and try to resolve them, for example, by offering flexible working where possible or allowing the employee to take holiday or unpaid leave.

If an employee’s anxiety prevents them from attending work, it is possible that they may be regarded as on sick leave and entitled to SSP or contractual sick pay.

If you are an employer who has questions about SSP or any employment law issue, please don’t hesitate to contact our Stoke-on-Trent solicitors on 01782 205000, our Altrincham solicitors on 0161 929 8446 or our Birmingham solicitors on 0121 516 3025. Alternatively, you can email enquiry@beswicks.com.