statutory sick pay question

cuteusmaximus

Hello all,

I have a question about SSP.

I am contracted by my employer to work 64 hours a month. This generally means 9-5 on Sat and Sun (I work in a gym) although occasionally I work during the weeks. My schedule is not set.

Beginning Monday November 7th I had pregnancy related problems that caused me to visit hospital and receive a doctors' note (stay home and rest, don't do anything strenuous). I didn't work my weekend shift on the 12th or 13th of November. I had an ultrasound scan a week later and the GP gave me a further two week note due to the results of the scan. Hence I did not work on the 19th/20th or the 26th/27th.

In my pay for November I received no sick pay. I was paid for the 26th/27th as holiday - I had booked that off as holiday six weeks before I had any problems. I was not informed that I would be using my holiday days like this, as I assumed that they would be treated as sick days.

I feel like I should be entitled to some SSP given that I was having medical problems (all related to the same issue) from the 7th to the 28th - all of which I had official doctor's notes for.

My employer states that because the days I was not at work were not contiguous (i.e. days in a row) that I am not entitled to SSP (and they don't have to do the paperwork for it!) nor I am allowed to redeem my two holiday days.

Can someone give me some advice? I will go to the citizen's advice bureau but the waiting list for appointments is weeks long, I would like to know now.
What I have read on the internet is inconclusive. My contract of work is equally inscrutable, so treat it as though I am entitled to the minimum the law requires.

Thanks
CM

Savvy_Sue

I think that they are wrong. At least, if the period of sickness is continuous, then you should be getting SSP for the days you would have worked. They are probably thinking that because SSP is not paid for the first three (?) days, then you never get it because you don't normally work 3 days in a row.

I think the holiday pay question is less clear cut. You ARE entitled to take holiday when you are off sick, but if you've pre-booked it I'm not sure you can automatically have it converted to SSP. However, you are probably better off financially having it as holiday pay than as SSP.

Off to look at the HMRC site to see if I can find anything to confirm my beliefs!

Savvy_Sue

OK. First, did you fill in a SC2 on your return to work? That says

If you cannot get SSP, your employer will give you form SSP1 to tell
you why. You can use form SSP1 to claim Incapacity Benefit.

If you disagree with your employer you can ask the Inland Revenue
for a decision about your entitlement.

Here are some of the reasons they might be trying to get out of paying you SSP, from the Employers Help Book E14 - do any of them apply?

are not sick for four, or more, days in a row

always earn less than £82.00 a week /£355 a month – but see pages 17 and 18 for how to work out earnings for SSP purposes

are within the 18/26 week exclusion (maternity pay leave) period due to pregnancy or recently having had a baby. See E14 (Supplement) Special cases for more details.

have already had 28 weeks worth of SSP from you and this new spell of sickness links to their last one

were not entitled to SSP the last time they were sick, for any other reason, and this spell of sickness links to that one

The E14 book is absolutely comprehensive, but can be a bit mind-numbing. However I find it helps if you've got to argue the toss with someone that you can tell them where you got your information from.

Having re-read your first post, it occurs to me that they might be right not to have paid you SSP, but wrong about the reasons they gave you. It depends how much above the minimum wage you're earning! However, note that for SSP they have to look at what you earned over the previous 8 weeks, so if you did more than your contracted hours you should be OK there.

Hope that helps ...

cuteusmaximus

Hi,
Thanks for your reply.

To clarify -

>are not sick for four, or more, days in a row

I was sick for more than a month, but had a doctor's note for three weeks of it which covered my absences

>always earn less than £82.00 a week /£355 a month – but see pages 17 and 18 for how >to work out earnings for SSP purposes

My monthly salary varies based on the number of hours I have worked, but it's never been less than £500 since I started work in June.

>are within the 18/26 week exclusion (maternity pay leave) period due to pregnancy or >recently having had a baby. See E14 (Supplement) Special cases for more details.

>have already had 28 weeks worth of SSP from you and this new spell of sickness links >to their last one

>were not entitled to SSP the last time they were sick, for any other reason, and this spell >of sickness links to that one

None of these apply to me.


I missed work for six days - I was paid holiday pay for the final two.

I'm thinking based on my reading of the SSP rules that my employer should at least have to pay for the fourth day.

What they are telling me is that SSP is only paid for days in a row. However this would penalize me because I rarely work four contiguous days - my schedule is scattered. I doubt the law would leave them that loophole, but I could be wrong.

Thanks for your help.

CIS

These may help:

heres the hmrc sick pay calculator

http://www.hmrc.gov.uk/calcs/ssp.htm

and hmrc sick pay guide

http://www.hmrc.gov.uk/helpsheets/e14.pdf

Note: Just found this

When is SSP payable ?

4. (i) Before SSP is payable a Period of Incapacity for Work (PIW) will have to have been constituted.

(ii) A PIW is a period of four consecutive calendar days of sickness including Saturdays, Sundays, Public Holidays and Rest Days.

(iii) SSP is only payable from the fourth qualifying day of absence and subsequent days of absence which form part of the same illness within a PIW.
Qualifying Days

5. (i) Qualifying days are those on which an employee is normally required to be available for work and/or days for which remuneration is paid.

(ii) SSP is not payable for the first three qualifying days in a PIW; these are called waiting days.

(iii) The four days needed to establish a PIW need not include qualifying days.

It looks like illness needs to be for at least 4 days AND you must be sick for at least 4 qualifying days ie. days you work.

It does seem to penalise part time workers

Savvy_Sue

CIS wrote:

It looks like illness needs to be for at least 4 days AND you must be sick for at least 4 qualifying days ie. days you work.

It does seem to penalise part time workers

As I read what you found I could see where you are coming from BUT I remained unconvinced as I am sure that since companies can no longer discriminate against part-time workers in almost any other way (pension entitlement, leave etc) this seems very discriminatory.

BUT DH and I have just read it together, slowly, and we now feel that CIS is right, you don't get SSP for the first 3 days you normally work, ie in your case the first Saturday and Sunday and the second Saturday of your absence.

BUT then again, this is complicated by the fact that although that's what you normally work, you have been required to work other days. So it's possible that your Qualifying Days could be based on the days you have worked in the previous 8 week period, and if that was regularly more than 3 days then you could be eligible for more SSP. I don't know, I am feeling in the dark here, basing it on what I know about calculating holiday pay for people who don't work regular hours.

A call to your local HMRC office - or the one which deals with your pay - might be worthwhile. If they don't themselves deal with NI, they should know who to refer you to. Don't settle for someone who 'thinks' this or that is the case, ask for someone who KNOWS what to do in these circumstances!

And I still say work should give you an SSP1 to explain why they're not paying SSP. If they haven't, you can give them an SC2 (you can download it from the link in my first post, and then I think that whether they like it or not they have to do some paperwork! They have to record sickness whether they're paying SSP or not! I'm sure the E14 says so!

With the SSP1 you may be able to claim Incapacity Benefit. If you think you'll be back at work soon you may not want to pursue it, but if you're still unwell then it would be worth doing.