Can you withhold sick pay during a pandemic?

Whether it’s a ‘duvet day’ because the weather is cold and dreary outside or a suspicious tummy bug following a sunny Bank Holiday Monday, if you are an employer then chances are you will have had cause on occasions to question whether a member of staff is being honest with you about their sickness.

Of course, during the pandemic people’s social lives have generally ground to halt but it has thrown up other COVID-19 related pressures for employers when it comes to managing absenteeism.

Whether it’s the frequent self-isolators to those who think that the pandemic means their employers absence reporting procedures no longer apply, in this article we look at what an employer can do to tackle this growing problem and whether withholding pay is an option.

[swpm_protected for="2" format_protected_msg="1"]

Sickness during a pandemic

There are some key differences to managing sickness during a pandemic, mainly concerning the rules regarding sick pay.

Firstly, Statutory Sick Pay (SSP) is usually payable on day four of the persons absence, with the first three days being paid ‘waiting days’. After seven calendar days of absence (not seven working days) an employee is required to submit a medical certificate or fit note, usually from their GP, to certify that they are too unwell to work.

The Statutory Sick Pay (Coronavirus) Regulations 2020 were introduced which stated that for COVID-19 related absences from work, the tree day waiting days are not applicable. Although, a minimum of four days absence is still required to be eligible for SSP.

In addition, and to avoid people descending on their GP practices demanding fit notes when they may be infectious, instead of a fit note from the GP, an employee should submit an isolation note which they fill in online at NHS.

Under what circumstances is SSP payable, what constitutes COVID-19 related absence?

According to GOV.UK

You could get SSP if you’re self-isolating because:

You can also get SSP if both of the following apply:

Please note- This doesn’t include those self-isolating after travelling to a country which is not within the UK safe travel corridor.

Can I claim any SSP back?

For the first 2 weeks of absence, if you employ fewer than 250 staff you can claim back up to two weeks SSP.

For more information and for details of how to claim please visit here.

What about someone who has symptoms but later receives a negative result?

Here the situation is tricky and employers are advised to get as much information from the employee as they can at the earliest opportunity.

The rules state that if someone has symptoms, they are required to get a test and certainly should not be presenting for work whilst they await those results. Instead, they should stay at home and may be entitled to SSP.

If, however, someone has symptoms and has a test which is subsequently negative, they should be able to return to work and if they have been absent for fewer than three days, the usual SSP rules will kick in and SSP is not likely to be payable. You need to seek advice on this though because as always, the individual circumstances will need to be taken into account.

I have someone who is continually self-isolating. I can’t force them into work of course but I strongly suspect they are either flouting lockdown rules or lying to me, what can I do?

This is something we are coming up against a lot and the obvious problem here for the employer is proving it.

Employers have a duty of care to their employees, but employees also have a duty to do all they can to keep themselves well. Now that isn’t to say that you can start withholding sick pay if a smoker has an asthma attack and so on but when it comes to breaching lockdown rules, your employee may be breaking the law.

The key to managing pandemic related absences is not dissimilar to managing general absences. Record keeping is very key, if employees know you are lax on managing attendance you are more likely to have higher rates of sickness absence generally, which will just be compounded during a pandemic

So, if you are faced with the employee who says they are self-isolating for the third time in as many months don’t assume, they’re being dishonest but ask the right questions. Such as:

  1. Why are you self-isolating i.e., do you have symptoms, does someone in your support bubble have symptoms, have you/they tested positive and so on.
  2. Have you been contacted by NHS track and trace? If so then ask to see the notification, if they have had a letter, ask for a copy.
  3. Make a note of what is said, for example, if someone in their bubble has symptoms, who are they, who else is in their bubble.
  4. On their return to work have a return to work interview with them.
  5. Seek our advice before taking any action

I just don’t believe their absence is genuine, they told me they were self-isolating and then posted pictures of themselves on Facebook drinking with friends. Therefore, I am withholding SSP because their absence is not genuine. What’s my risk?

The employer can withhold SSP if they think their employee’s sickness absence is not genuine. The risk though is that SSP is a statutory payment- so you need to make sure you have addressed this appropriately.

You wouldn’t be advised to just withhold the SSP, instead you should investigate the issue with the employee having sought our advice. That way you are able to show, that your decision not to pay SSP was a reasonable and fair one.

And finally…. Not showing up for work and failing to report absence in line with your absence reporting procedures is still unauthorised absence, irrespective of the fact we are in a pandemic. This can give rise to disciplinary action against the employee and the loss of pay.

Advice must be sought though before taking action.