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Suspension of sick pay waiting days ends for most

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Changes to the Statutory Sick Pay system brought about by the pandemic have now ended, meaning that pay for self-isolation and waiting days has stopped for many.

6th Apr 2022
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The Statutory Sick Pay (SSP) system has been with us since the mid-1980s and little has changed in all that time – until the pandemic struck.

SSP is a minimum payment that employers must make to eligible employees if they are unable to work. Employers cannot recover any of the payment from HMRC. 

The Coronavirus Act 2020 changed the operation of the SSP system, which was necessary as a result of increased sickness and, therefore, increased cost to employers. This time-limited Act received Royal Assent on 25 March 2020 and allowed for secondary legislation to be made which gave us:

  • The Coronavirus Statutory Sick Pay Rebate Scheme – the first one closing 30 September 2021 and the second closing 17 March 2022
  • The suspension of waiting days powers means that SSP could be paid from the first qualifying day in a Period of Incapacity for Work (PIW) rather than the fourth.

This gave us two types of minimum sickness payment:

  1. Covid-related SSP – where an employee became eligible when sick and/or isolating (and shielding when this was in place). Covid SSP was the SSP type payable from the first qualifying day in the PIW and this type of SSP could be recovered under the Coronavirus Statutory Sick Pay Rebate Scheme, when this was in operation.
  2. Normal SSP – this is where the absence is not Covid-related, for example, an absence caused by a broken arm. This type of SSP was subject to the normal rules meaning that it was payable from the fourth qualifying day in the PIW and could not be recovered under the Coronavirus Statutory Sick Pay Rebate Scheme.

Expiry of the Act

Friday 25 March 2022 marked the expiry of the Coronavirus Act 2020, and as a result, any legislation made under that Act also fell away. With the Coronavirus Statutory Sick Pay Rebate Scheme already ended, this meant the waiting days suspension also automatically fell away. 

However, as SSP is a transferred function to Northern Ireland, this part of the UK could always differ from Great Britain. Thus from 25 March 2022 this has meant there is one minimum sickness payment system, which differs in operation in different regions.

In Great Britain

On 25 March 2020, the Department for Work and Pensions did NOT extend the waiting days suspension. The Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days) (Saving Provision) Regulations 2022 and Explanatory Memorandum are clear that the provisions provided by the Coronavirus Act 2020 were temporary, including those related to SSP, and they did expire at midnight on 24 March 2022.

However, what was saved was the waiting days suspension for any PIW starting on or before 24 March 2022. If the suspension had not been saved, when the Act fell away at midnight on 24 March 2022, it would have had the unintended consequence of not providing for the suspension for anyone with an ongoing PIW that started on or before 24 March 2022.

Further, The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2022 have the effect that amendments made to the overriding SSP legislation in Great Britain are revoked, placing the 1982 General Regulations back to the position it was in before. The consequence of this is that individuals cannot deem themselves incapable of work if they are isolating or shielding themselves “in such a manner as to prevent infection or contamination with coronavirus”. For SSP eligibility, the individual must be sick or incapable of working, not isolating, to protect themselves or others.

In Northern Ireland

The 2020 Act contained a provision at section 90 to allow “a relevant national authority” to extend the expiry date of provisions in the Act by up to six months. The Northern Ireland Assembly is a relevant national authority and, on their behalf, the Department for Communities made The Coronavirus Act 2020 (Extension of Provisions Relating to Statutory Sick Pay) Order (Northern Ireland) 2022 on 23 March 2022 which extended the waiting days’ suspension powers until 24 September 2022. 

They did not make any legislation that changed the SSP eligibility criteria to exclude individuals who need to self-isolate as a result of guidance self-isolate because “They need to self-isolate for medical reasons to protect others”.

Operated differently

The expiry of the 2020 Act and Regulations in Great Britain and Northern Ireland means that one UK-wide SSP system is operated differently:

  • In Great Britain, any PIW is subject to three waiting days and SSP is not payable where the individual is self-isolating
  • In Northern Ireland, the waiting days suspension continues until 24 September 2022 for Covid-related SSP and self-isolating is an eligibility reason.

Returning to the first point about SSP being a minimum entitlement, the fact that one system is operated differently does not mean that this is a barrier to employers making a payment to a sick employee from day one of absence from work. Yet, it is a barrier to the employer calling that minimum payment SSP in Great Britain. 

In day-to-day operation, employers can decide whether they consider the employee eligible and incapable of work and there is nothing to stop them making this minimum payment – but they can’t call it SSP.

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