Employment lawyers answer your questions about statutory sick pay and coronavirus

BY GILSON GRAY/GRAHAM MILLAR

I have over 20 years’ experience as an employment lawyer, but this is by far the most challenging time I have witnessed for any businesses in the UK – and indeed the rest of the world.

The most important advice we can give you right now is: first and foremost, continue to follow the government, Acas and NHS guidelines as the COVID-19 pandemic and its impact changes and continues to affect all of us.

Below, my skilled employment team has pulled together some helpful advice for anyone – both employers and employees – worried about Statutory Sick Pay (SSP) and their entitlements.

What regulation applies to me?

The most important regulation for you to be aware of is Regulation 2 of the Statutory Sick Pay (General) Regulations 1982, which has been added to and amended by the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020.

When can I qualify for Statutory Sick Pay?

Employees can qualify for SSP when they’re absent because of incapacity. So, if you’re experiencing symptoms of the virus and decide, or are advised to self-isolate, your absence will likely be regarded as an incapacity and you will be able to avail of SSP.

The UK government has recently changed the regulations on SSP to include employees who self-isolate in accordance with the government guidelines. The government has also brought forward emergency legislation which means you will now be able to avail of SSP from your first day of absence from work.

There is some good news for smaller companies as well. Companies with less than 250 employees will be reimbursed by the government for SSP paid for fourteen days, for absences related to the virus. This will hopefully give smaller companies and employees a sense of security during this uncertain time.

What happens if I’m advised to self-isolate?

If you’re advised to self-isolate, you can obtain a notification from the NHS through 111, which can be used as evidence of your absence from work. While making this easier for you, this also reduces some of the mounting pressure on our NHS and GP services.

If your employer sends you home to self-isolate following government guidance, you will be entitled to SSP. If your employer is taking precautionary measures and insisting you don’t come to work, you will be entitled to your normal rate of pay. 

If you’re concerned about coming to work due to COVID-19, working from home can resolve this. But, if this isn’t possible, your employer might need to consider the current public health advice, including whether it might be discriminatory to refuse you to work from home.

Can I take annual leave?

Like normal, the usual rules on annual leave will continue to apply. This means you can take a holiday during self-isolation or sickness absences, but your employer can’t force you to take either.

If you are not on sick leave, you can still take statutory annual leave as normal. Your employer can also instruct you to take statutory leave, once they’ve given you the required level of notice – which is double the time off. For example, if your employer wants you to take five days’ holiday you will need to be given 10 days’ notice.

A full version of this guidance is available here. The employment team at Gilson Gray will continue to publish updates and information for employers and employees on its website News & Insights blog. For more information on Gilson Gray and its services, please visit: gilsongray.co.uk

This information was correct at the time of writing, however as this is an ever-changing situation please stay up to date on new government, NHS and Acas advice.

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