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Statutory Sick Pay: Temporary changes

This change came completely ‘out of the blue’ with no warning to employers.

In a surprise move, the Government has made a temporary change to the rules around evidencing incapacity for work, to be eligible for Statutory Sick Pay (SSP).

The detail

The Statutory Sick Pay (Medical Evidence) Regulations 2021 provide that an employee shall not be required to provide medical information in respect of the first 28 days of any spell of incapacity from work.

This effectively means that to be eligible for SSP, an employee is able to ‘self-certify’ for a period of 4 weeks without providing a ‘fit note’ from their GP. Previously, the self-certification period was only 7 days.

Importantly though, this change is time-limited: applying only to absences which commence on any day between 10 December 2021 and 26 January 2022 inclusive.

Although the ‘relevant period’ referenced in the regulations begins on 17 December 2021, absences commencing less than 7 days prior to that date are also captured. This is because the ‘normal’ self-certification period of 7 days has not yet been reached in respect of these spells of absence.

Unless the effect of these regulations is extended, or further legislation is introduced, periods of absence commencing on or after 27 January 2022 will be subject to a 7-day self-certification period as usual.
These self-certification periods include non-working days, such as weekends and Bank Holidays.

Comment

This change came completely ‘out of the blue’ with no warning to employers. The rationale is to relieve pressure on NHS services during the winter pressure period, and to allow GPs to focus on the rollout of the COVID-19 booster vaccine.

The extension of the self-certification period has caused considerable alarm, as an employee can be absent from work for almost a month, with no obligation to consult a doctor or to provide evidence of illness. This relaxation of the rules is certainly open to abuse, and there is a risk that some employees, especially in lower-paid roles, might be tempted to report sick to extend Christmas holidays, or to take time off where annual leave has not been granted by their employer. This may be especially problematic in sectors such as retail, where the seasonal ‘surge’ of Christmas shopping and January sales requires a full quota of staff.

Thankfully though, the expiry of the new rules in late January should mean that any issues are relatively short-lived.

The temporary nature of the change means that it probably not necessary to amend any references to a 7-day eligibility period in your sickness absence policies. However, you may wish to alert staff to the new rules. When and how to do so may be a tricky judgement call. You may prefer to wait until a member of staff reports as sick before advising them that medical certification after 7 days is not required.

Remember that the 28-day eligibility period applies to SSP only. If your policies require employees to evidence incapacity for work sooner, to be eligible for additional company sick pay, then you may continue to request this. However, if commercially viable, you might wish to consider relaxing internal evidence requirements also, in the ‘spirit’ of the legislation and to demonstrate support for the booster drive.
If you have any questions or concerns, please do not hesitate to contact us.

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