0370 1500 100
Employment Law Update

FAQs: Statutory sick pay

1. Are all members of staff entitled to receive SSP?

Not necessarily. Only employees working under a contract of employment, or those who are treated as an 'employed earner' for social security purposes, are entitled to receive SSP. In this context, employees are a wider category than under normal employment law tests and include all those whose earnings are liable for Class 1 National Insurance contributions.

There is no minimum period of service (although individuals must have started work) nor are there any age limits that apply.

2. Are there any other qualifying conditions?

Yes. Employees must be unable to work due to illness and have average weekly earnings of no less than the Lower Earnings Limit (currently £116 per week). The latter requirement means that many zero hours workers on low pay are excluded because they don’t earn enough.

In addition, SSP is only payable if the employee has been ill for four consecutive days (these do not have to be working days). This is known as a ‘period of incapacity for work.’ Employees are entitled to up to 28 weeks’ SSP in any period of incapacity for work, or in a series of any linked periods (provided each period is not more than 56 calendar days after the preceding period).

3. Does it matter why the employee is ill?

No. The reason why the employee is ill is completely irrelevant. Therefore, you can’t refuse to pay SSP to an otherwise eligible employee if their incapacity is caused by their own negligence or neglect.

4. What does an employee have to do to claim SSP?

They must tell you they are sick within seven calendar days of their illness/incapacitation and provide evidence. Employees are usually able to self-certify for the first week of absence, but after that will need medical evidence, such as a fit note or other correspondence from their doctor.

5. We don’t think one of our employees is entitled to receive SSP. What happens next?

You need to notify the employee using form SSP1 and explain your reasons by ticking the appropriate box. This form can be found here: https://www.gov.uk/government/publications/statutory-sick-pay-employee-not-entitled-form-for-employers

If your employee does not accept your explanation, they can apply to the HMRC Statutory Payments Disputes Team for a determination – not the Employment Tribunal.

6. When does SSP start?

You start paying SSP from the fourth 'qualifying day' (this is the day an employee is normally required to work). The first three qualifying days are known as 'waiting days.' However, if the employee is sick and has received SSP within the last eight weeks, they should be paid SSP immediately and don’t have to wait a further three days from the date of the new illness.

You cannot count a day as a sick day if an employee has worked for a minute or more before they go home sick.

7. When does SSP end?

An employee’s entitlement to SSP will end on the earlier of:

  • The employee returning to work
  • The expiry date on the fit note, if no further note is obtained
  • The employee exhausting their SSP allowance
  • The termination of the employee’s employment
  • The day immediately before they take maternity leave, if the employee is pregnant.

If the employee’s entitlement to SSP ends unexpectedly (perhaps because they resign or are imprisoned), you should send them the SSP1 form within seven days.

8. One of our part-time staff is sick and wishes to claim SSP. What are their qualifying days?

SSP is only payable for the days the employee is usually required to work (known as qualifying days). These are usually set out in the employee’s contract of employment or section 1 statement of terms. For example, an employee working Monday to Wednesday will usually have those three days expressed to be their qualifying days.

If there is no agreement about this (perhaps because the work is flexible and allocated each week), the qualifying days will be those days which you and the employee agree are working days for that week.

If you haven’t agreed any working days in the week (as might happen if you engage someone on a zero hours contract), Wednesday is deemed a qualifying day. This means that an employee can still receive SSP for a week in which they wouldn’t normally work.

9. Do we need to notify our employee if we think they will exhaust their entitlement to SSP?

Yes – and it can be a criminal offence not to do so.

If you expect the employee’s sickness absence to continue beyond 28 weeks’ the rules that apply require you to notify the employee of this using form SSP1 on or before the 42nd day before you expect their entitlement to end. This will usually be at the start of week 23 of SSP being paid. In any other case where you reasonably assume that SSP will end in 14 days’ time, you should give the employee at least seven days written notice using form SSP1. This might apply where the employee has had a number of absences that are linked, rather than one long absence. To be linked, the periods must last four or more days each and be eight weeks or less apart.

You must provide this information so that your employee can apply to the Department for Work and Pensions for Employment Support Allowance (ESA). This will help the employee prove that, although they are still employed, they are not receiving any income.

10. What happens if we forget to advise an employee their SSP has or will end?

If you don’t give your employee form SSP1 within the correct time limits, a court can fine you up to £300. If you still don’t provide the relevant information, it can impose a further fine of up to £60 for each day you have not provided this information.



Sign up to receive our monthly employment law update

Employment update – July 2018

For general enquiries

0370 1500 100

Or we can call you back at a time of your choice

  • Phone lines open 24/7, 365 days a year

Contact us today

For a free initial consultation

Prefer not to call?

Use our form

This data will only be used by Irwin Mitchell for processing your query and for no other purpose.

© 2019 Irwin Mitchell LLP is Authorised & Regulated by the Solicitors Regulation Authority. Our Regulatory Information.