who goes sick during the statutory period of notice and
is not able to work out all or part of the notice.
Employers were required to provide what is called
statutory sick pay(SSP) on behalf of the government to
employees who are aged 16 or over but not over 65.
These upper and lower limits are removed from 1 Octo-
ber 2006 by the Age Regulations 2006. The law is to be
found, in the main, in the Social Security Contributions
and Benefits Act 1992. The Social Security Administra-
tion Act 1992 deals with the administration of statutory
sick pay and statutory maternity pay. It is not necessary
in a book of this nature to go into details in regard to
the statutory sick pay scheme but the main principles
are that when an employee falls sick he or she gets a
weekly amount from the employer and not from the
Department of Social Security.
The Statutory Sick Pay Act 1994 removed (from 6
April 1994) an employer’s right to recover sums paid
by way of SSP from the total amount of employers’
and employees’ national insurance contributions due to
HMRC. However, this led to protests from employers,
and the government introduced regulations under which
all employers recover SSP under the ‘percentage threshold
scheme’. Under this scheme the employer takes the figure
of NIC (employers and employees) due in any given tax
month. The employer then ascertains the SSP paid in the
same month. If this is more than 13 per cent of the NIC
figure, the employer recovers the excess.
There is no other change to entitlement to SSP ex-
cept that s 7 of the Social Security (Incapacity for Work)
Act 1994 abolished the lower rate of SSP. There is now
only one standard rate, this being currently £72.55 per
week.
The provisions relating to SSP are notoriously dif-
ficult if taken in full detail, but in broad terms SSP is
paid by an employer (or a series of employers) for up
to 28 weeks of incapacity for work during a three-year
period. The first three days of sickness are waiting days
and no SSP is payable. However, as regards the second
and subsequent periods of sickness, if the employee has
not been back at work following the first period of sick-
ness for eight weeks or more the periods are linked and
there are no waiting days, SSP beginning on the first day
of sickness in the second or subsequent period. We can
illustrate what happens (see below).
In Norma’s case, since she has not returned to work for
the requisite period of more than eight weeks, her periods
of incapacity are linked and no waiting days are applied
to the second period of incapacity because it is not a new
one. Both John and Norma have now exhausted their
entitlement to SSP against their employer. An employer’s
liability to pay SSP ends when he has paid the employee
SSP for 28 weeks during a three-year period commenc-
ing with the first incapacity. During the remainder of the
three years John and Norma cannot have SSP but will be
able to resume that right when a new period of three
years begins three years after the first incapacity.
Employees who are still incapacitated after their
entitlement has run out are entitled to state benefits. It is
not possible to avoid the statutory sick pay provisions
and any clause in a contract of employment which sets
out to do this is void.Part 4Business resources
470
John’s pattern of sickness
3 waiting days 10 weeks of 10 weeks 3 waiting days 18 weeks of
incapacity at work incapacity
and SSP and SSP
Norma’s pattern of sickness
3 waiting days 10 weeks of 5 weeks 8 weeks of 4 weeks 10 weeks of
incapacity at work incapacity at work incapacity
and SSP and SSP and SSP
Exceptions
A person who is employed for a fixed period of not more
than three months is not eligible and in all cases the
claimant must have earned the qualifying level, cur-
rently £102 a week.
Enforcement
If an employee is dissatisfied with an employer’s deci-
sion in regard to entitlement to SSP or the employer has
failed to make a decision, the employee can write to
HMRC asking for a decision on entitlement. Employer