David Jepps: How Covid-19 affects statutory sick pay

At the start of the pandemic, statutory sick pay (SSP) rules were changed to include Covid-19 (Coronavirus) scenarios because self-isolation or having tested positive with no symptoms were not covered by the SSP definition of incapacity. Those rules have since been tweaked many times and are expected to stay in place until at least 24 March this year.

For SSP to be triggered for Covid-19 reasons, an employee does not have to be unwell. They can display no symptoms, but if they have tested positive or have been required by guidance to self-isolate, SSP will be available.

Employers can make more than one SSP claim per employee, but the rules only allow for up to two weeks of Covid-related SSP to be paid for each claim.

Where an employee must quarantine after travel, there is no cover. It is not clear whether employees self-isolating after returning from abroad and while awaiting the results of a PCR test are covered. The rules have not yet been tweaked in this respect and may not be in the future.

However, if such employees test positive, they are then covered, and if not, on the basis that tests are required within two days of returning to the UK, unless results are significantly delayed then the necessary four qualifying days to trigger SSP payments will not pass.

As SSP rates are currently low at £96.35 a week and any contractual sick pay might only be activated by actual illness, many employees will readily agree to work from home if they can, in order to receive full pay.

Taking paid holiday is another possibility. SSP is not due where employees are working or on holiday. Some employers may exercise a discretion to pay contractual sick pay, but this could not top up SSP where it is not due.

Employers should be aware that the above rules, which are correct as at 5 January 2022, are for England. The rest of the UK may have different rules.

David Jepps is an employment partner at Keystone Law