Pandemics & sick pay

21 May 2020

With all the talk in the press currently surrounding ‘furlough’ and what it means, there is a danger of employers missing the changes and relief available for Statutory Sick Pay (SSP). HMRC have now released further guidance about the introduction of the Statutory Sick Pay Rebate Scheme (SSPRS), which has been available online from 26 May 2020.

This scheme and online portal will allow employers to claim back SSP paid to current or former employees, where the reason for paying that SSP was COVID-19. There are, however, some conditions.

Not only does the reason for paying the SSP have to be COVID-19-related, but the employer must also have/had; (1) a PAYE payroll scheme that was created and started on or before 28 February 2020; and (2) fewer than 250 employees as at 28 February 2020.

The SSPRS will cover up to 2 weeks SSP and (provided all conditions are met), that SSP will be payable on the first day of sickness absence. This is opposed to previous obligations for SSP to be paid to the employee from the fourth day of sick absence.

The three key scenarios this scheme is primarily targeted towards are where an employee is;

1.      unable to work due to suffering from COVID-19 symptoms;

2.      unable to work because they are self-isolating, as someone in their household is showing COVID-19 symptoms; and

3.      unable to work because they are shielding and have a letter from the NHS or their GP telling them to stay at home for at least 12 weeks.

Whilst there is no explicit requirement for the employee being paid SSP to produce evidence, in most cases the employee should be able to have to hand an NHS 111 Isolation Note, or a letter from the NHS or their GP telling them to stay at home. If available employers should obtain a copy as without these documents, they may encounter evidential difficulties should HMRC audit repayments in the future.

There are clear instructions coming from HMRC that employers should be keeping records in respect of this scheme for 3 years after payment of the rebate, detailing:

·       The dates the employee was off sick.

·       The dates that were qualifying days for SSP.

·       The reason the employee said they were off work.

·       The employee’s National Insurance Numbers.

Despite the fact that the online function only becomes available on 26 May 2020, employers can claim for previous periods of sick leave starting on or after 13 March 2020, if the employee in question had COVID-19 or was self-isolating with someone suffering symptoms. Or, on or after 16 April 2020, if the employee was shielding because of COVID-19.

The information provided is based on current guidance issued by the government and may be potentially subject to change.   As such, our advice will always be to take out legal advice and to not make assumptions as to how these schemes might work.

If you wish to seek legal advice in respect of the SSPRS, or any of the other measures and relief introduced in response to COVID-19, please contact the Employment Department at Backhouse Jones on 01254 828 300.