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ARTICLE ORIGINALLY PUBLISHED March 2018

STATUTORY SICK PAY—THE MYSTERIES

In my experience short term sickness is one of the greatest causes of angst for salon owners. It results in hassle and disruption to their clients and impacts adversely on the business.

The fact an employee is unwell is often not the immediate concern.

An understanding of sick pay and SSP is pretty important but often salon owners' understanding of sick pay rules is vague. I am afraid all employers are going to experience times when staff are off sick and understanding their entitlements is pretty fundamental. It’s time to remind ourselves of the basics and clarify a few areas of confusion. And hopefully this article will achieve that objective.

Before we look at SSP and the headaches; what about the staff who are never off and battle through coughs and colds to get to work? What reward do they getting into work, causing you zero hassle and achieving 100% attendance? In most cases the answer is nothing and it is worth reviewing this. Some salons offer extra holiday or even pay for 100% attendance. At the very least it costs nothing at least to acknowledge an employee hasn't had a day off for a year.

THE BASICS OF SSP

To be eligible for SSP an employee’s average weekly earnings must exceed £113 (£116 from April 2018).

The weekly payment of SSP is £89.35 rising to £92.05 in April 2018.

Employee don't receive SSP for the first three days of absence (called waiting days) the 3 days don't have to be the employee’s working days.

The only exception is if the employee has been absent in the last 8 weeks and already had 1 or more waiting days. In these cases the periods of absence are "linked".

Finally after 7 consecutive days off an employee must submit a medical certificate from their GP historically a "sick note" now called a "fit note".

To work out the daily rate of SSP for part weeks you divide the weekly SSP rate by the number of working days the employee worked per week.

Employers are no longer able to recover the cost of SSP from the Government. If an employee isn't eligible for SSP or is about to exhaust their entitlement the employer gives them an SSP1 form and they may be able to apply for Employment and Support Allowance (ESA) from the Government.

SSP is payable for a total of 28 weeks in any 3 year period.

THE FINE DETAIL

Hopefully, readers are fairly familiar with the mechanics of SSP but here are a few pieces of information that might not be so well known.

  • if an employee reports for work and then goes home unwell, even if they are only in work for 1 minute, it does not count as a sick day for SSP purposes.
  • At the end of their Fit Note or period of absence the employee doesn't have to go back to their GP to be signed fit for work. The GP has already given their opinion as to the duration of your absence.

EMPLOYMENT LAW ISSUES

When the SSP entitlement is exhausted (a maximum of 28 weeks in a 3 year period) an employer can’t simply dismiss the employee, all that happens is they stop paying SSP.

This simply means the employee isn’t paid by the employer anymore; their employment status is a separate matter.

Any decision to terminate an employee's employment on health grounds is a management one based on medical advice obtained from their GP. You would always attempt to get medical advice form the employees GP first, it might be that the employee will be fit to return in a matter of weeks.

I recently read a case of a salon owner who had tried to argue -unsuccessfully-that an employee who was absent for 7 weeks due to a broken foot was effectively gross misconduct.

Employers sometimes give managers or longer serving staff a period of occupational sick pay ie full pay rather than SSP. It isn’t a legal requirement but some salon owners view it as part of the employment package for managers or offer it as a retention or reward tool for longer serving staff. Of course it’s a big potential cost if it’s abused! All the statistics confirm that where staff get full pay if they are off sick they are off more frequently.

If you offer this then it is important your contract is absolutely explicit.

For example If you give up to 10 days a year; is that a calendar year? Would you pay full pay even if the employee had 10 x single days off? If not the contract needs to spell out all the rules.

Of more concern is where the contract saying Occupational sick pay is "discretionary". It really isn’t a good idea for the salon owner to make up the rules as they go along. “Discretionary” quickly becomes seen by the "non-beneficiaries" as discriminatory.

PHASED RETURN TO WORK

With the introduction of Fit Notes GPs were able to "help employers" but indicating for example that David is unfit for work for 2 weeks but he could come back to work if the day was limited to 4 hours and he could remain seated.

This advice is just that-it is advice. You are free to accept it, or decide the adjustments don't work for you, or causes you more problems than solutions.

Returning on this basis is referred to as a "phased return". In cases where, for example, the GP suggests returning for 2 days a week then SSP can be paid for non-working days, however, there must be at least 4 consecutive days absence (these don’t have to be working days).

For example

If you work 1 day per week, you can still get SSP for the remaining 4 days.

SICK WHILST ON HOLIDAY

There is case law on this issue and it is clear an employee can return from holiday and advise they were actually sick for a number of days or even present a medical certificate for a longer period, and ask for their holidays to be in effect reinstated.

This does happen but remember the employee has probably already been paid their holiday pay so would be required to refund this and have it replaced with sick pay. Few employers give occupational sick pay so at best they will receive SSP and nothing for the first three days.



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