SICK PAY - 25.08.2017

Work-related incapacity and right to pay

Happened at work

A subscriber has contacted us with a query that relates to pay. They have an employee who is currently off sick due to a work-related injury and it’s likely that they could be off work for a few months. During sickness absence our subscriber only pays its employees statutory sick pay (SSP) which this employee is currently receiving. However, the employee has contacted our subscriber saying that they’ve taken legal advice and are entitled to receive full pay for the duration of their sickness absence. Is this correct?

SSP rules

Where an employee is absent from work due to a work-related illness or injury, their entitlement to pay is exactly the same as when they are off sick for a non work-related illness or injury - they aren’t automatically entitled to receive full pay unless their employment contract states otherwise. So if our subscriber pays SSP only during periods of sickness absence, that’s what the employee should receive (but do see our important note below).

28 weeks later

When an employee has received SSP for 28 weeks, their eligibility for it will end but they will remain an employee of the business. So they should continue to submit medical certificates if they are unable to work.

Tip. In this situation you should always notify the employee in writing that their entitlement to SSP is ending. We’ve produced a letter that you can issue (see The next step ).

Important note

It’s important to note that where a work-related illness or injury is the result of negligence or a breach of statutory duty on the employer’s part, the employee may well have grounds for a personal injury claim. Where they succeed, they would then be entitled to any lost earnings incurred during their sickness absence. As this employee claims to have sought legal advice, should our subscriber just exercise its discretion and pay them in full pay anyway?

Potential trouble

Although it’s tempting, a decision to pay full pay instead of SSP only could backfire for a number of reasons. For example, it: (1) could give the impression that an employer has something to hide; (2) may encourage an employee to stay off work for longer than is necessary as there’s no incentive for them to return as soon as they can; and (3) may inadvertently give all employees a right to full pay for any work-related illness or injuries as a result of custom and practice.

Tip 1. Paying full pay where an employee has a work-related illness or injury won’t prevent them from suing you. However, if they don’t sue or if their claim fails, you will be out of pocket.

Tip 2. An enhanced payment, e.g. 50% of pay, could be made instead. This will limit the financial exposure if a personal injury claim is successful plus show reasonableness on your part.

For a free letter withdrawing SSP, visit http://tipsandadvice-personnel.co.uk/download (PS 19.15.04).