Sick Pay Guide for Employers

Your employee disagrees with your decision on their SSP entitlement

Written statement

If you decide not to pay SSP for a QD, for whatever reason, you should explain your decision to your employee.

If they don't agree, they have the right to ask for a written statement from you about:

• which, if any, are days that you regard SSP is payable for
• how much SSP you consider your employee is entitled to
• why you do not regard yourself as liable to pay SSP for other days in the period.

An employee can ask for a written statement at any time, and if the request is reasonable you must supply the statement within a reasonable time, for example within seven days of the request.

Formal decisions about SSP entitlement

If your employee doesn’t agree with your decision about their SSP entitlement, they can ask HMRC to make a formal decision. HMRC is the first of the authorities who decide questions on entitlement to SSP. In practice, such decisions are given judicially by authorised officers of HMRC. Their decisions are given strictly in accordance with the facts and the law.

Before asking for a formal decision from HMRC, your employee will be expected to have asked you for a written statement about their SSP position. Perhaps they will also have discussed the problem with you.

Both you and your employee will be asked for observations in writing. Neither of you will be asked to appear before the officer making the decision. You can both give supporting evidence. In the event of an appeal, your evidence will be copied to your employee and vice versa.

The officer making the decision will send the formal decision to both of you. If the decision is that your employee is entitled to SSP, the decision will give the time limit by which you must pay the SSP. You will be given full details of your appeal rights with the notice of decision.

If either of you appeals, HMRC will notify the other party. If you appeal, the officer making the decision will try to discuss the case with you so that the appeal can be decided by agreement between you, the officer and your employee.

Any agreement reached about the payment or otherwise of SSP must comply with the appropriate legislation.

If all parties are unable to agree, Tax Commissioners will consider the appeal. You both have the right to appear in person and/or be represented at the hearing.

Commissioners’ decisions are final, except that you can appeal on a point of law, with leave, to the Court of Appeal, or in Scotland, to the Court of Session or in Northern Ireland the Court of Appeal (NI).

If new facts come to light which affect the decision, the decision will be reviewed and, if appropriate, a revised decision will be issued. There are new appeal rights against this decision. It is in everyone’s interest to put all the facts before the officer making the decision in the first place.

Insolvent employers

If you become insolvent within the terms of the SSP (General) Regulations 1982, as amended, and the employees’ contracts are not terminated on insolvency, any SSP due in that employment from the date of insolvency becomes the liability of HMRC, you should contact the Employer Helpline for advice.

If the employees’ contracts are terminated, entitlement to SSP ends when the contracts end. It remains the employer’s liability to pay any SSP due for the period before the date of insolvency.

SSP not paid after a formal decision that it is due

If an employer fails to pay SSP within the legal time limit following a decision:

• by HMRC that SSP is due and the employer makes no appeal, or
• by Tax Commissioners that SSP is due at an appeal hearing, the employer may incur a civil penalty.

More information on details of penalties.

Employer ceases to trade

When an employer ceases to trade, entitlement to SSP only ends when the employee’s contract ends.

Remember an employee who is still sick when their contract ends cannot continue to get SSP after that date. The employer should issue form SSP1 so that the employee can contact their local Jobcentre Plus or in Northern Ireland the Jobs and Benefits Office to claim IB.

People unable to act for themselves

If an employee is mentally incapable of acting for themself and you are unsure about who should be paid the SSP, contact the Employer Helpline and explain the situation. They will be able to give you advice and/or direct your enquiry to the Statutory Payments Disputes Office who will advise you how to handle paying your employee’s SSP.

Effect of entitlement on payment of Statutory Adoption Pay and Statutory Paternity Pay

An employee cannot get Statutory Paternity Pay (SPP) or Statutory Adoption Pay (SAP) for any week in which they are entitled to be paid SSP. If an employee is sick and qualifies for SSP before the start of their SAP or SPP leave they must delay the start of their SAP or SPP until they are well. If this is not possible within the time limits for taking their SAP or SPP, their entitlement to SAP or SPP will be reduced by each week in which they have been paid SSP. If they become sick during their SAP or SPP pay period and are entitled to be paid SSP, you cannot pay them SAP or SPP for any week in which they qualify to get any SSP.

For more information about SAP and SPP see Employer Helpbook E16 Pay and time off work for adoptive parents and the Employer Helpbook E15 Pay and time off for parents.

Working out maximum liability when QDs change in a PIW

If your employee’s QDs changed after they first went sick in a series of linked PIWs you will need to work out when you reach your maximum liability to SSP.

Say your employee has five QDs, Monday to Friday for the first linked spells of sickness and you paid five weeks and four day’s SSP. They then change to three QDs, Tuesday to Thursday and you pay 4 weeks and one day’s SSP.

To work out how many weeks have been paid:

• take each PIW where the QDs are the same and work out how many days SSP you paid, then
• divide this by the number of QDs in the week.

1 (5 x 5) + 4 = 29 ÷ 5 = 5.8 weeks
2 (3 x 4) + 1 = 13 ÷ 3 = 4.3 weeks

So your remaining liability in that PIW is 17.9 weeks SSP.

Why you need to work out the number of odd days in a fraction of a week

Because not all the possible numbers of QDs in a week convert to exact decimal fractions, you must use these decimal fractions in all cases.

To work out the number of odd days needed to make up a fraction of a week:

1. express one QD as a decimal fraction of a week using the table above
2. divide into the fraction of the week’s liability that is left and round up.

There are three QDs in a week in the earlier example.

In the example you need to convert 17.9 weeks to weeks and days.

One QD = 0.334.

0.9 ÷ 0.334 = 2.69 rounded up to three days.

17 weeks + three days = 18 weeks.

You have a possible maximum liability of 18 weeks left.

Linked PIWs with you that have lasted for three years

If your employee has a series of linked PIWs with you that run for longer than three years after the first day of incapacity, your liability to pay SSP stops at the end of the third year even if you have not paid 28 weeks SSP.

The ending of liability after three years applies only to a PIW that has run entirely with you. A PIW with a former employer doesn’t count towards the three years, even if you have taken account of any SSP shown on a SSP1(L) Leaver’s statement.

See What is new about SSP1(L).

When to issue form SSP1(L) Leaver’s statement

If a new employee falls sick for four or more days in a row within eight weeks of first starting work for you, they may give you a form SSP1(L) Leaver’s statement, completed by their previous employer.

If the period between the first day of the PIW with you and the date at Date 2 on the form is 56 days or less, (that is eight weeks or less) you can reduce your maximum liability in that PIW by the number of weeks of SSP shown on the statement.

See What is new about SSP1(L).

Employees who leave

If your employee leaves your employment, issue form SSP1(L) or your own version, only if:

• your employee asks you to, and
• SSP was payable for at least one week, bearing in mind the rounding rules, in the eight weeks (that is 56 consecutive days), before the date their contract ended.

See What is new about SSP1(L).

Rounding odd days of SSP for form SSP1(L)

To round odd days of SSP paid for filling in form SSP1(L):

• divide the number of odd days of SSP payable by the number of QDs in that week
• multiply by seven
• if the answer is
• more than three days, treat it as a whole week
• three days or less, take no account of it.

See What is new about SSP1(L)