Statutory Sick Pay, Statement of Fitness for Work and Phased Return to Work.

A Statement of Fitness for Work (‘Fit Note’) has replaced the Doctor’s Medical Certificate (‘Sick Note’) from April 2010.

Doctors may only issue a fit note after seven calendar days of sickness absence. For sickness absences of seven calendar days or fewer, employees can self certify.

The statement of fitness for work gives a doctor two main options:
•    that the patient is unfit for work
•    that they may be fit for work taking account of certain advice

In the latter case, the doctor has four further choices - if available, and with the employer’s agreement, the patient may benefit from:

•    a phased return to work
•    amended duties
•    altered hours
•    workplace adaptations

Employers are not obliged to act on the doctor's advice, but the statement may help you make simple and practical adjustments to help your staff return to work and reduce unnecessary sickness absence.

On the surface, the phased return to work may seem to be the easiest for an employer to accommodate.  However, in reality this can present problems, particularly for the employee.

The HM Revenue & Customs rules are as follows:

  1. Where an employee is on a phased return to work, they are paid in full for the days (or part days) they work.
  2. They are entitled to SSP for the days they don't work, provided that the non-worked days form what is called a Period of Incapacity for Work     (PIW).  A PIW must be a minimum of 4 days long, but can include Saturdays and Sundays even though these are not work days.

Where an employee is full time and on a phased return to work:

  • They can work 1 day per week and still get SSP for the remaining 4 days.
  • They can work 2 days per week and still get SSP but the two days would have to be two consecutive days in order to get the maximum SSP for the remainder of the week.  If they work, say Monday and Wednesday they would lose 1 days SSP.  If they work Monday and Thursday they would get no SSP! (No 4 day interval in between)
  • They can work 3 days per week and still get SSP for the remaining 2 days but the 3 days would have to be consecutive again.
  • If they work 4 days per week they get no SSP. (No 4 day PIW in between).

If the employee on a phased return to work does not work a full day, they cannot get SSP for the remainder of that day, although obviously they are paid as normal for the hours they work.

The rules for part-time workers can be slightly more complicated, and the many different possible permutations cannot be demonstrated here.  

Employers who also pay Contractual (or Occupational) Sick Pay will also need to consider how this will interact with the new SSP regulations in relation to phased returns to work.
A review of any such scheme should be undertaken to ensure it is compatible with the new regulations.  This should be in consultation with employees and their representatives (i.e. trade unions).

There is an HM Revenue & Customs FactSheet which you may find useful.

Alternatively, please contact me for further advice and assistance.

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