We have an employee at the moment that has a sore back. She submitted her first Fitness for Work Statement on 12th July. Her current statement is due to expire on 2nd August, but she will get another if she still needs it. She has been on full pay since she submitted her first certificate. As her employer we cannot continue on full pay indefinitely, and would like to change her from full pay to statutory rates from 3rd August if her period of sickness continues. Before doing so I would like to make sure we are acting in accordance with the law, and fulfilling our contractual obligations. I would really appreciate it if you could answer the following questions for me:
1. Could you give me a brief overview of an employee’s rights in relation to time off work due to sickness – and what statutory rates of sick pay are?
Statutory Sick Pay (SSP) is paid by an employer to a sick employee for up to 28 weeks. It provides a fixed weekly amount of benefit to the employee. Eligibility for Statutory Sick Pay does not depend on the number of hours per week a person works. However, it is only available to those whose earnings are no less than the lower earnings limit for National Insurance contribution purposes. This requirement has the inevitable effect of excluding some part-time workers. So far as Occupational Sick Pay is concerned, pro-rata entitlement for part-time workers will avoid the possibility of the scheme being seen as indirectly discriminatory.
There is only one rate of Statutory Sick Pay (SSP).Pay denotes the minimum weekly pay, which an employee must earn, to be entitled to the weekly rate of SSP.
The current rate of SSP for the 09/10 tax year is £79.15.
For more information or advice contact your HR Advantage Consultant.
2. This employee feels that she would like to return to work on reduced hours (1 hour a day) – if she wants to do that, and her doctor feels that she is fit to return on reduced hours, are we obliged to allow her to do this, and do we have to put her back on full pay and stop reclaiming SSP payments from HMRC?
An employee cannot be in receipt of SSP and being paid for work at the same time. What we advice in this area is that the employee should receive no less pay during a phased return to work than they would if they were sick. SSP is however not payable for part days and therefore you may need to consider paying her a sick pay rate (equivalent to SSP) for the hours that she doesn’t work on the day that she is able to come in for an hour. I do not think you’d be able to claim this back from HMRC though and so may form part of your justification as to why you cannot accommodate the reduced hours (see below). One hour a day does not seem very practicable – how many hours a day would she normally work?
With regards whether you are obliged to allow her to work an hour a day or not the answer is no. This is about giving you greater flexibility and better information to manage sickness absence. It’s your choice, after discussing the Statement with your employee, how to act on the doctor’s advice.
If the doctor has advised that your employee ‘may be fit for work’, and you cannot make the adaptations or adjustments to help a return to work, you should explain the reasons for this to your employee and then use the Statement as if the doctor had advised ‘not fit for work’. Your employee does not need to go back to their doctor for a new Statement to confirm this.
3. Can an employee take holidays in the middle of a sick period that is covered by a Fitness for Work certificate – or is it all considered to be the one period of sickness?
As you can imagine employees in receipt of SSP often want to take time as paid annual leave instead. This is fine so long as it is agreed by the Company. With regards to SSP the periods either side of the holiday will be counted as “linked” provided there is less than 8 weeks between them. Therefore there are no waiting days for the second absence, and it counts towards the same limit of 28 weeks.
4. I would also like to ask you to look at this person’s contract to make sure we are fulfilling our contractual obligations. The following is the section of her contract that deals with sick leave:-
Without prejudice to the Employer’s right to terminate your employment at any time during a sickness absence, you will be paid your normal net basic salary up to a minimum of a further 3 months in any 12 month period. Contractual sickness benefit includes entitlement to SSP.
It appears from this that the employee is entitled to 3 months at full pay in any 12 month period (including entitlement to SSP). You wouldn’t therefore be able to reduce the employee’s pay to SSP until the 3 months have been exhausted at full pay, assuming that she has complied with your notification procedures.
5. When this employee started working for us and was given her contract we were operating as a Trust. We have since changed to a Private Limited Company, but the contracts have not yet been renewed for the Company. Do the original Trust employment contracts still stand, or is this employee effectively without a contract?
The employee’s terms and conditions of employment will remain as they are. You should however issue new contracts as soon as possible under the new Company name.
