Sick pay (SSP) law - anyone good on it who can help?

Mrs_SSP

I'll try & be as detailed as possible. If you need more information then feel free to ask.

I required a minor operation which i discussed with my employer immediately. From the beginning i told them i would be off in the morning - as that's when the appointment was and that i would be back for the afternoon (as i thought i would be). The words "take the morning unpaid" weren't mentioned, but it's basically a given that you take the appointment as unpaid which is why neither party specifies this every time they require an appointment.

Fast forward to operation day (Wednesday) & i get told by the surgeon not to return to work for 3-5 days as with my line of work it could damage the stitches & i could have infection issues. I wasn't prepared for this & couldn't really afford it so told the surgeon i would be returning to work.

I return at dinner time, clock on & see HR who deals with all this stuff. I explained the situation & said i was wanting to return to work, but i understood if the company did not want to take the risk. HR told me that it's not their (the company) decision, it's MY decision. I found this strange & said i'm sure it's the company who has the final say - what if anything went wrong? I'm happy to take the chance as i can't afford time off, but is the company happy to take the chance? HR heads off to find out & then returns - no, i'm not to return & i'm to follow docs orders. I apologise & leave, clocking out (total clock on duration - around 10mins).

Healing time takes a lot longer than we all thought & i was told to take even more time off. I had the operation on the Wednesday & i had the rest of that week off, plus Mon-Sun of the following week too.

I pick up my payslip & as i totally expected - i didn't get paid for the Wednesday. After all, i didn't actually WORK.



I pick up the payslip for the full week off, yet i'm only paid 4 days SSP, not 5. I enquire...

I get told that they (the company) are correct. I get told i have to be off for 4 days before i can get paid (i know - i was), and i've to serve 3 waiting days (i know - i did). I said these were Weds-Fri, HR said they were Thurs-Mon.

They went on to say that Wednesday didn't count - because i took it off unpaid for a hospital appointment. I said this wasn't so - i took the morning off. They said they saw it as me taking the day off unpaid. We never ever discussed this, not once. They went on to say that i could've had complications from the anasthetic - so i took the day off unpaid.
I don't understand this - when we the employees talk about "could've" & "might've", we get told that we can't discuss that, we can only discuss facts - what HAS happened or IS happening or WILL happen. So i don't understand how this might've is even relevant.

I said that this was not true & that i came back at dinner time that day fully prepared and wanting to work - however it was my employer that sent me home to follow doctors orders.

I said again - i was willing to work that day, so i wasn't taking it off unpaid. If i was, why would i have even come back at dinner time? HR told me they didn't see it as that & they would need to look into the matter.



So the question is thrown out there - who is correct?

I don't mind if i'm wrong & they're right, just so long as i know. If it's a case of "it isn't really the done thing, but they're right" then it doesn't matter - right is right, it doesn't matter if it's fair or the done thing or whatever. If they can do it, then they can do it.

I am just concerned that rather than looking into whether they have to pay the disputed day as SSP, they will instead look for a loophole to avoid paying it.

Yes, it's only 1 day SSP which some may say is a small amount & why am i bothered - it's a small amount, but what is a small amount to some can be significant to others. Besides that, i'm not questioning the amount - i'm questioning whether this is right/wrong.

Thanks in advance.

KiKi

You agree that you took the morning unpaid - and you even say that it's a given that appointments are taken unpaid. They have no reason to believe that it's a sick day. They are right that it's not their decision to determine if you're well enough to be at work - they are not medical specialists. If your doctor says you're not well enough, then they were absolutely right to send you home.

You were well enough to go to your workplace and insist on working, so I can understand why they think it wasn't a sick day. It seems that neither of you really agreed what this meant at the time for this second half of the day. However - them sending you home isn't the reason is should be SSP, so don't make that your argument. It's the fact that your doctor said you weren't well enough to work which would make me insist this was sick leave - which they agreed with in sending you home (they had no choice in the matter, they're not going to allow you to work against your doctor's advice).

Do you have a fit note from your doctor dated from that afternoon?

I don't know the law on half days for SSP - can anyone say whether or not SSP can be given for half days?

Mrs_SSP

KiKi wrote: »

You agree that you took the morning unpaid - and you even say that it's a given that appointments are taken unpaid. They have no reason to believe that it's a sick day.

True. I'm not arguing this. In fact, i'm not really arguing that they should pay me an extra day SSP. The way i understood it was that they should, but i will readily admit that i may have understood wrongly. I'm simply here to find out, not to go pointing fingers.

They are right that it's not their decision to determine if you're well enough to be at work - they are not medical specialists. If your doctor says you're not well enough, then they were absolutely right to send you home.

You misunderstand me totally.
I never said it was their decision to determine if i was well enough to be at work. What i said was that i said i was happy to take the chance & when i asked HR, they said that it (taking a chance) was down to me. As in - if i was willing to take the chance then i could come back.
It was only when i said what if something goes wrong did HR enquire at the top & the final verdict was the company didn't want to take the chance (on me risking it against docs orders).

At no point did i ask them if they think i'm well enough to do the job. I told them i felt that i was. In fact, not even a doctor can tell you whether you're well enough to do a job accurately. Yes they may have the position to do this & i admit that that is all it comes down to ATEOTD, but a doctor can be wrong. I've been told by a doc before that i am not ready for a return. I've gone back & been perfectly fine.

It seems that neither of you really agreed what this meant at the time for this second half of the day.

True. This seems to be the sticky point.

It's the fact that your doctor said you weren't well enough to work which would make me insist this was sick leave - which they agreed with in sending you home (they had no choice in the matter, they're not going to allow you to work against your doctor's advice).

TBH i'm not quite sure what you're saying here - whether you're thinking i should or shouldn't get the extra day SSP. Your earlier post makes me think you say i shouldn't, the latter part of your post makes me think you reckon i should.

Do you have a fit note from your doctor dated from that afternoon?

No, only from when my period of self sick ended. Actually, at the moment it's from a day before my self sick ended as i THOUGHT it ended on the Tuesday.
In short, my note was from Weds-Sun of the 2nd week.

I don't know the law on half days for SSP - can anyone say whether or not SSP can be given for half days?

I would imagine not at a guess. I've never read anything on half day SSP before.

chrisbur

It is my personal opinion ( and only that I have had no experiance of SSP cases going to a formal decission) that this first day should be treated as the first day of your PIW and as the first waiting day. Your doctor advised you not to work and you had an operation,so you were sick that day, you notified your employer on that day, and you did no work on that day, so that should be the first qualifying day.

If you feel you want to pursue the matter there is a procedure to follow if you disagree with your employer's decission not to count a day as a qualifying day. The details can be seen on page 29 of
http://www.hmrc.gov.uk/helpsheets/e14.pdf

The starting point is to request a written statement from your employer (following from the E14 helpbook....
"Written statement

If you decide not to pay SSP for a QD, for whatever reason, you should explain your decision to your employee.

If they don’t agree, they have the right to ask for a written statement from you about:

• those days that you regard SSP is payable for

• how much SSP you consider your employee isentitled to

• why you do not regard yourself as liable to pay SSP for other days in the period.

An employee can ask for a written statement at any time, and if the request is reasonable you must supply the statement within a reasonable time, for example within seven days of the request."

You would then contact HMRC and request a formal decission regarding SSP entitlement.

Whether you feel that this would be worth it bearing in mind that it would proberbly annoy your employer, your gain at best is only going to be one day of SSP and you might not get that, my opinion is no guarantee of success.

KiKi

As I was no help whatsoever, maybe this is: http://www.hmrc.gov.uk/payerti/employee/statutory-pay/ssp-calc.htm

It refers to the first full day of sickness being your first qualifying day. So as you agreed the morning was unpaid, I'd say they were correct in not counting the Wednesday, and counting Thurs to Mon.

KiKi

Mrs_SSP

Well at any rate - i'm glad that it's something that is easily confused. 2 people, 2 different opinions - this shows it's not just me.

Don't they claim SSP back anyway? AFAIK this doesn't come out of their pocket. With that said, they've refused to pay SSP in the past.

With reading this forum & my own experiences, it seems to me that an employer can pretty much do what they like, so long as they don't put a gun to your head. Well, so long as they don't actually pull the trigger. It's frustrating.


Although i do remember one time my employer went ballistic & refused to pay a group of us for something like 30-60mins of pay. The employer said they were going to deduct it from our entire department.
Basically this employer goes on wild posessed rants & they were throwing totally false accusations around as the basis for this deduction.
I came here (or got a friend to ask rather) whether it could be done. The response was pretty unanimous - yes they can.

Turns out no they couldn't. I spoke to my union when the deduction was made & they called it "unlawful deduction of wages" & that i would win the case easily. This contradicted totally what was said on MSE.

I spoke to payroll when the deduction went through. They told me to essentially see the boss. I told payroll i knew why the deduction was made & that they had broken their promise:
1) to always inform us properly when a deduction would be made (the boss going on a wild rant wasn't informing as the boss has done that many times without actioning it).
2) That there will be a full investigation into any deduction (there wasn't)
3) the reason for deduction wasn't covered by the allowable reasons mentioned in the contract (damage to stock, taking too many hols etc).

The one and only reason i didn't pursue it was because due to other events at that time, i had in a round about way come out better off (without the details that wont make sense, but you'll have to take my word).

Why do i tell this story? Because the advice i was initially given was incorrect.

Why do i come here then you will ask? Because 1) i actually do appreciate all advice given 2) it's free 3) the union tell me to only call when something has happened. I come here for advice before it's happened, but i'm sure we can all agree that only a fool would swallow 100% what they read on the internet & that it's always best to get professional advice - which is what i'll do after the outcome of their decision.

I'll update when i find out.

chrisbur

Mrs_SSP wrote: »

Well at any rate - i'm glad that it's something that is easily confused. 2 people, 2 different opinions - this shows it's not just me.

Don't they claim SSP back anyway? AFAIK this doesn't come out of their pocket. With that said, they've refused to pay SSP in the past.

This was true when SSP was first introduced a little over thirty years ago. Indeed for a year or two, from memory starting in the second or third year of SSP the employer got a bit extra back to cover admin and any employers' NI that might be paid. But then it was changed and there have been various rules for small employers to get some or possibly all of SSP back, and at the moment only SSP that each month is greater than a certain percentage of the NI total can be reclaimed. So just about all large employers will pay the full SSP bill themselves and only smaller employers might get any refund, usually partial. This is a guess to some extent as have not seen any actual figures about how mutch is refunded.

Regarding whether that first day is "a full day of sickness" I would consider it was. Whatever was said about it beforehand was on the basis of what was expected to happen. On the actual day there was an operation followed by a recomendation from the doctor not to work, both of these count as sickness as far as SSP is concerned, and the only other thing needed to count is that no work is done, which I understand is the case. Again I would stress that this is a personal opinion based on how I used to operate SSP when involved in payroll I have never had any experiance of a case going to a formal decission.

Whatever the rights and wrongs of this I still feel that for one day's SSP it is not worth annoying your employer. Perhaps what is required is a polite query to the employer along the lines that had you known about the doctor's advice regarding not working after the operation, before taking the day off you would have advised them that you would be sick that day.