Statutory Sick Pay
Statutory Sick Pay (SSP) is paid by employers to employees who, including weekends and holidays, are off sick for more than four consecutive days. SSP is not paid for the first three days of sickness; but after this period can be paid for up to 28 weeks at a rate of £79.15 a week as of 6 April 2009. Employees must earn more than £95 a week to be eligible for SSP.
After the 28 week period any sick pay will be paid to the employee by the Department for Work and Pensions, with any sums paid by the employer reduced accordingly.
The employee must notify their absence to the employer and provide evidence of sickness if this is contained within an agreed procedure with the employer. The most common forms of evidence are self-certification or a doctor's certificate. However, an employer cannot request a doctor's certificate unless seven days of sickness have elapsed.
Employers have a duty to keep records of SSP payments for three years.
Contractual Sick Pay
Policies for Contractual Sick Pay (CSP) must be in excess of SSP and will either be in the employee's contract of employment or set out in a separate sickness policy. CSP policies must cover the following points:
• Employees should be informed if the policy is discretionary and whether SSP payments will be deducted from CSP payments
• If employees will be paid full pay for a set period and then half pay or no pay thereafter.
• The evidence of sickness the employee is obliged to provide.
• Whether CSP will be recouped from a third party if the employee's sickness is due to their negligence.
If the employment contract or sickness policy does not provide for CSP, then a right to CSP may be implied if the employer has an unwritten policy of paying CSP to employees or has always done so.
Claims against the employer
The employee may bring a series of claims against an employer who has failed to implement a sick pay policy effectively. The employer may be subject to a claim under the Health and Safety at Work Act 1974 for failing to provide a safe system of work. If the employer has failed to prevent a reasonably foreseeable risk of physical or mental injury to the employee, then they may bring a claim in negligence. The incorrect application of sick pay policies may result in claims for disability discrimination or unfair dismissal.
To guard against claims relating to sick pay, the employer should follow these best practice guidelines whilst the employee is off sick:
• The employer should keep in contact with the employee, whilst being aware that too much contact can result in a claim under the Protection from Harassment Act 1997.
• Conducting return to work interviews or meetings to discuss medical reports if these are obtained
• Monitoring absence data
• Keeping a paper trail of all documents and communications with the employee