UK statutory sick pay rule change has ‘significant implications’ for employers

The change in the law, which came into effect on 17 December, means workers must now only provide their employer with proof of their illness if they are off work for more than 28 days, including non-working days, in a row. This is backdated to include absences of more than seven days which commenced on or after 10 December.

Sue Gilchrist, employment expert at Pinsent Masons, said: “At first glance, it looks like a small change, but it has significant knock-on implications for employers as they try to manage absence over the Christmas period.”

“This includes the huge numbers of employees who are expected to be absent due to the Omicron variant,” she added.

In the UK, when an eligible employee is too sick to work, their employer must pay them £96.35 per week in SSP for up to 28 weeks.

To qualify for SSP, a worker must be classed as an employee by an employer and have completed some work for them.

They must also earn an average of at least £120 per week, and have been ill or self-isolating for at least four days, including non-working days in a row. If self-isolating and unable to attend work because of coronavirus, employees can provide an isolation note from NHS 111 to their employers to certify their absence.

Gilchrist warned that the new rule has a knock-on effect for businesses that offer company sick pay (CSP) alongside SSP.

CSP is sometimes included in a worker's employment contract guaranteeing that they will receive their normal salary when absent during illness. Employers’ policies often require a fit note to validate illness for CSP purposes.

Employers can still request a fit note within the 28 day self-certification period, but GPs will require payment for what is essentially a private medical certificate. 

Gilchrist said: “While it’s possible to request, and pay, for a fit note, it does undermine the policy reason behind the change, which is to free up GP time. It is also likely that certification could be significantly delayed due to capacity issues. So this will be really problematic for employers dealing with individual absences, particularly where payment of CSP needs to be considered.”

“Whether a business can withhold CSP will depend on the wording of their policy. They may accept other evidence, such as the fact that someone is in hospital. They should also take care that any discretionary approach is handled in a non-discriminatory way,” she added.