Statutory Sick Pay and the Fit Note

Statutory Sick Pay

From 6th April 2024, you can get £116.75 a week Statutory Sick Pay (SSP) for up to 28 weeks.

You can get SSP from the fourth day you're off sick.

If you're eligible, you'll be paid SSP for all the days you're off sick that you normally would have worked, except for the first 3.

You'll only be paid SSP for the first 3 working days you are off sick if either of the following apply:

• you received SSP within the last 8 weeks, and that already included a 3-day waiting period before you were paid SSP

what you will get

Eligibility

To qualify for Statutory Sick Pay (SSP) you must:

• be classed as an employee and have done some work for your employer
• earn an average of at least £123 per week
• have been ill for at least 4 days in a row (including non-working days)
• How many days you can get SSP for depends on why you're off work.

Agency workers are entitled to Statutory Sick Pay.

eligibility

If you do not, or no longer, qualify for statutory sick pay then you should apply for Employment Support Allowance (ESA). Your employer will give you an SSP1 for this. For more information see:
www.gov.uk

You may apply for ESA:

• within 7 days of going off sick if you earn below the LEL
• within 7 days of your SSP ending if it ends while you are still sick
• on or before the beginning of the 23rd week, if your SSP is expected to end before your illness does

Exceptions

You won't qualify for SSP if you:

• have received the maximum amount of SSP (28 weeks)
• have taken 3 years or more 'linked periods' of sickness - where 4 or more days of sickness happen within 8 weeks of each other
• are receiving Statutory Maternity Pay

How Average Weekly Earnings (AWE) is calculated

Average weekly earnings are calculated over the eight weeks before the period of sickness began. Only earnings actually paid in this eight week period can be used for the average weekly earnings calculation. These earnings must be subject to National Insurance contributions (or would be if the earnings were high enough) and can include, as well as normal earnings: overtime, bonuses and holiday pay.

If an employee has not worked in the job for 8 weeks, the relevant period becomes the period represented by all the earnings paid so far under the contract, before the first day of sick absence. Their AWE is then calculated by this sum of money and the number of days or weeks it applies to.

If an employee has not been paid any wages since the day they started and the first day they are sick then employers must use the employee's normal stated earnings as stated in their contract in order to calculate their AWE.

For further information on calculating AWE see:
www.gov.uk

Calculating SSP

Once an employer has calculated AWE to ensure an employee is entitled to SSP, they will work out how much SSP is due and pay it on the same day that an employee would normally receive their wages, and for the same time period. SSP is based on the number of Qualifying Days (QDs) an employee works. They are the days that an employee normally works - their contracted working days.

SSP is not payable for the first 3 QDs - these are called Waiting Days (WDs). They are not always the first 3 days of the sickness absence as the employee may be sick on non-QDs, e.g., weekends. Part-time staff must still serve three waiting days before they can get payment.

• Example: If they work Thursday and Friday and become sick on a Friday, the waiting days will be the Friday of the week that they are first sick and the Thursday and Friday of the next week. If they continue to be sick, SSP will only be paid from the Thursday of the following week.

If an employee works a full week every week, then an employer must pay the weekly rate of SSP for each full week that they are off sick.

If an employee works for a period less than a full week , then an employer must pay SSP for a part-week, using a daily rate of SSP - the weekly rate divided by the number of QDs in that week.

For further information and a helpful chart to calculate daily rate SSP see
www.gov.uk

Linking with a previous period of SSP

If you are off sick with gaps of eight weeks or less, your days off sick are added together to count towards the 28 weeks. If you are off sick more than once with more than eight weeks in between, the periods you were off sick are not added together and the 28 weeks starts being counted again each time.

Agency workers and term-time only contracts

If an agency worker meets the qualifying conditions for payment SSP is payable. An employer can't end an agency worker's contract of service to avoid paying SSP. Term time only staff are entitled to SSP once they start working, but if the contract ends at the end of term, and is not continuous, then SSP will not be payable in between term time contracts. There are also rules about not paying SSP if an employee has recently started work after claiming ESA.

For more information on agency workers rights please see
www.adviceguide.org.uk

Self-certification

Employers can also ask employees to fill in a form when they return to work to confirm they've been off sick for up to 7 days. This is called 'self-certification'. Employers usually provide their own version of this form.

Record keeping

You don't need to keep records of SSP paid.

You can choose how you keep records of your employees' sickness absence. HMRC may need to see these records if there's a dispute over payment of SSP.

Salary sacrifice scheme and SSP

If a member of staff has a salary sacrifice arrangement, their average weekly earnings are calculated using the actual earnings (minus the salary sacrifice) paid.

This could mean that their average weekly earnings may not reach the Lower Earnings Limit for payment of SSP.

Maternity and paternity or adoption pay and SSP

Women who are entitled to Statutory Maternity Pay (SMP) or Maternity Allowance (MA) are not entitled to SSP during their Maternity Pay Period (MPP) or Maternity Allowance Period (MAP). The MPP or MAP is a period of 39 weeks during which SMP vor MA is payable.

If an employee is not entitled to SMP or MA and is receiving SSP, her entitlement will end on the earlier of the:

• date on which her baby is born
• day she is first off sick, either wholly or partly because of her pregnancy, if this is on or after the fourth week before her baby is due.

Where a period of incapacity to work (PIW) doesn't start until after the end of the disqualifying period, SSP must be considered under the normal rules for that PIW.

Where a PIW started before, or during the disqualifying period, SSP is not payable until a new unlinked PIW is formed.

Staff taking paternity or adoption leave and pay cannot claim SSP at the same time. They should delay taking the paternity or adoption leave, if they fall ill and claim SSP. They must however take paternity or adoption leave within 56 days of the birth or adoption placement date.

The Fit Note

Fit notes and proof of sickness

Employees must give their employer a doctor's 'fit note' (previously called a 'sick note') if they're off sick for more than 7 days in a row (including non-working days). Hospital doctors or GPs provide them. They can charge a fee if a fit note is asked for before the 7th day.

The fit note will say the employee is either 'not fit for work' or 'may be fit for work'.

If it says the employee 'may be fit for work', employers should discuss any changes that might help the employee return to work (e.g., different hours or tasks). The employee must be treated as 'not fit for work' if there's no agreement on these changes.

Examples of a phased return to work may include:

• A phased return to work - where they may benefit from a gradual increase in work duties or working hours, for example after an operation or after injury
• Altered hours - allowing the worker the flexibility to start or leave later, for example if they struggle travelling in the 'rush hour'
• Amended duties - to take into account their condition, for example removing heavy lifting if they had a back injury
• Alterations to the workplace - to take into account their condition, for example allowing them to work on the ground floor if they have problems going up and down stairs

Employers can take a copy of the fit note, the employee should keep the original.

Sick leave procedures and policies

SOSCN recommends employers have clear processes in place to let staff know how to report in sick and how to claim SSP or contractual sick pay.

Employees should let you know if the are ill, as soon as possible, within the first seven days of sick leave. For SSP purposes, you cannot insist they report in person, or tell you in advance of sick leave, or by a particular date, or phone more than once a week while off sick, in order to qualify for SSP.

As the first seven calendar days are self certified you cannot insist on a "fit note" for that period. If they are off ill for a longer period you should ask for a "fit note" to show eligibility for SSP.

For contractual sick pay, pay can be applied from the first day of illness, depending on the conditions attached to your contractual sick pay policy. You can impose your own reasonable conditions; however your company sick pay must not be less than SSP entitlement. Staff should still be informed about entitlement or not to SSP. Up to the first seven days of illness are self certified by the employee and you may provide your own forms for this or download from: www.hmrc.gov.uk/forms/sc2.pdf

Accurate records of SSP paid to employees, and sick leave taken, must be kept for at least three years.

Disclaimer:

This factsheet is a source of guidance only; it does not constitute legal advice.

Readers should always check for updates, using the contacts provided, for the latest information, as employment law, minimum wage rates etc. change often. This material constitutes information and basic guidance on good practice only; it is not a substitute for legal advice.

Source Links:

Agency Workers

www.adviceguide.org.uk

Sick pay overview

https://www.gov.uk

Sick pay for employers

www.gov.uk