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You're not sick! - HMRC letter guidance

An SSP Update by Simon Parsons

The Employer Helpbook for Statutory Sick Pay (SSP) E14(2009) has been amended and now includes useful guidance explaining what to do when an employee is no longer entitled to SSP - but the SSP1 exemptions listed doesn’t apply!

These changes are a result of the employer representative petition administered by the Governments Statutory Payments Consultation Group.

Guidance has always given circumstance of where SSP need not be paid by the employer. But how would the employer deal with such an incident and how should they tell the employee that they were not entitled to SSP or other sick pay?

Personally I’ve received correspondence over the past few years from various employers concerned that they were being forced to meet 100% of the costs of Statutory Sick Pay for a minority of their employees where things were not particularly adding up.

Employees were frequently having periods of self certified sickness and refused to provide or allow further medical evidence to be pursued – “My spouse is in HR and has told me that I can refuse and you cannot do anything about it”. Or where the employee has signed themselves off for physical injury but the employer has evidence of them undertaking significant DIY work or competing in a local sporting event. Even when a medical certificate is provided the reason given would not always exclude the individual from work.

Some medical practitioners will issue a certificate to an individual with the term “NAD” (No Abnormally Detected). So some individuals may be telling their friends that they are suffering from NADs disease. Another variation is the NAF disease (or No Abnormality Found), also suffering from STL (or Swinging The Lead).

What genuine reasons are there for not paying SSP that are not one of the SSP1 exclusions?

An employee must satisfy a number of qualifying conditions to be entitled to SSP. The first is telling the employer that they are sick. Employers can set their own rules for notification. The earliest that can be required is notification during the first Qualifying Day (QD) of absence. If the employer does not set rules then the employee must notify the “incapacity within seven days of their first day of absence”.  If the notice is late then the employer can withhold SSP for the period of delay, that’s unless there was a good cause for the delay.

Equally a certificate may indicate a reason that does not equate with an absence from work and an employer may therefore refuse to accept the evidence as being appropriate. However, HMRC guidance does states that “a doctor’s statement is strong evidence of incapacity and should usually be accepted as conclusive unless there is more compelling evidence to the contrary”

Bereavement (death of a relative) is not sickness incapacity and if a certificate contains this as the reason, the employer will need to decide whether to accept this as incapacity or not. SSP is only payable if the employer decides that any reason for incapacity is acceptable.

If an employee refuses to give their consent for the employer to seek medical advice, then the employer may consider the refusal as sufficient grounds to doubt the incapacity as genuine and stop paying SSP.

So on page 13 of the new Employer Helpbook E14(2009), an example letter is now made available for employer use. The reasons, unfortunately, are not insert-able into the letter as the tense is incorrect, so I’ve attempted to provide some alternate wording: