Changes to the definition of "sickness absence" for Statutory Sick Pay ("SSP") purposes

SSP is payable when an employee is sick, i.e. when they are incapable to work due to a disease, bodily or mental disablement.

One of the many changes introduced by the Government as a result of COVID-19 is a number of Regulations which have expanded the legal definition of incapacity for SSP purposes.

In light of these changes, employees in the following situations will be able to claim they are incapable of working and therefore can be entitled to SSP:

1. They have symptoms of COVID-19, regardless of the severity of the symptoms, and as a result, are following Government advice to stay at home for 7 days.
2. They live in the same household as someone who is self-isolating (due to point 1 above) and are therefore following Government advice to stay at home for 14 days.
3. They are self-isolating (due to point 2 above) for 14 days, during which they develop symptoms of COVID-19 (as per point 1 above) and are therefore following Government advice to stay at home for 7 days after symptoms started. For example, if symptoms did not start until day 13, they would be self-isolating for a total of 20 days.They are defined in public health guidance as being extremely vulnerable and at very high risk of severe illness from COVID-19 due to an underlying health condition, and have been notified that they need to follow shielding measures for a specified period.

As stated in our Coronavirus COVID-19 Bulletins, the definition of sickness absence has not changed for businesses who offer enhanced sick pay, such as full or half Company sick pay. However, given the confusion regarding differing definitions of sickness absence, and potentially any further changes in the future, we would advise businesses to incorporate the Government’s definition of sickness absence for Company sick pay purposes.

In addition, it should be noted that not all employment laws have been changed just because of COVID-19. As such sick pay is not owed to those who are not advised to self-isolate and these absences could be considered as an unauthorised unpaid absence.

We expect the new extended definition of sickness absence for SSP purposes will remain in force for as long as the Government is dealing with the situation with COVID-19. As such, businesses also need to consider how this might affect staffing and cash flow issues, especially if individuals are not permitted to work in an extended number of situations.

Please contact us if you require any advice on any of the employment and HR issues referred to above. Please contact Sally Morris on 01905 610410 or at sally.morris@mfgsolicitors.com to discuss any frequently asked questions.