Sick pay in the UK

By Rachael Holton, Ryan Kelly, Amy McWilliams and Jamie Watt (Editor: SJ Crossan)

As a society, we understand the concept of employment. You offer to work for an individual or an organisation in return for payment. Nonetheless, the status of employment, the kind of work and what kind of contract you have can take many forms. What are these different types of employment status? Well, as per Section 230(1) of the Employments Rights Act 1996, an ‘employee’ refers to a person who has gone into or works under a ‘contract of employment’. However, this is not the only type of employment status that exists, and this is a common misconception of today’s generation. In the workforce, some individuals are classed as ‘workers’ or ‘self-employed’. What is the difference?

Differences in Employment Status

For the most part, an employee works under what is referred to as a ‘contract of employment or service’. The agreement will list the basic rights of a worker, for example, whether it is temporary or permanent work, annual leave and working hours. An example is displayed below:

You could be forgiven for believing that this was the most widely recognised kind of ‘work’ or employment. According to figures from the Office of National Statistics, however, just 13% of the workforce in London are classed as ‘employees’, with over 27% working in the gig economy (Rodgers, 2018).

An employee essentially works under a contractual agreement. However, in any case, the rights vary to that of an employee, who is typically qualified for additional, and dissimilar sorts of rights. A worker must finish the work themselves except if they are offered consent to subcontract the work. A business will frequently utilise such and individual to help for a set timeframe, giving them enough work to fill their days over the length of their contract (Rodgers, 2018).

Conversely, a self- employed individual is classed as a subcontractor, who maintains their own business and, in this manner, assumes full liability for everything that accompanies that status. They work for themselves, implying that a great part of the time employment law, unfortunately, does not cover them (Rodgers, 2018).

The issues arising from an individual’s employment status can be seen in the case of Knight v Fairway & Kenwood Car Service Ltd UKEAT/0075/12/LA. The claimant was a cab driver working with the respondent organisation under written terms. If he paid the present lease and gave appropriate notices, he could work, or not, as he wished with no antagonistic outcomes under the agreement. He left the respondent organisation in the wake of being approached to do taxi jobs once they had been taken paying little mind to the conduct of the specific customer. He claimed wrongful dismissal, i.e. a claim for a breach of the employment contract.

Held: The Employment Tribunal ultimately decided that he was not working under a ‘contract of employment’ thus his case could not be heard by them. The claimant submitted an appeal. Nevertheless, the Employment Appeal Tribunal dismissed the claim on the grounds that the composed terms did not require any base or sensible measure of work from the claimant; he was allowed to work or not work. Nor in the conditions was there scope for inducing such a commitment from the way that the claimant, in truth, worked 7 days per week.

Employment Rights vs Employment Status

The distinction between these types of employment status’ is so important in the workplace, and it is crucial that employers and individuals are aware of such differences. All employees are workers in a sense; however, employees get certain employment rights in their agreement that a worker does not. The difference between a few of the rights available to individuals, based on their employment status can be seen below:

In the event that an individual is uncertain about their rights in relation to employment law, the Advisory, Conciliation and Arbitration Service (ACAS) has set out the rights these individuals are entitled to, depending on their employment status. A link to these rights can be found below:

https://www.acas.org.uk/checking-your-employment-rights

Now, while there are laws that cover both employees and workers e.g. under Section 10 of the Employment Relations Act 1999, both employees and workers have the right to be accompanied by another individual in disciplinary or grievance hearings, there can be clear differences in how employees and workers are treated. A significant topic that has come under scrutiny in the past, and especially now in these uncertain times, is that of Sickness and Absence in the workforce, in particular, the right to receive or claim Statutory Sick Pay (SSP).

Statutory Sick Pay

Positioned above is a copy of the Statutory Sick Pay document.

As previously mentioned, some UK employees could be entitled to receive a form of sick pay from their employers, otherwise known as contractual sick pay. However, the amount of money paid depends on the length of time the staff member has worked for at the commencement of the absence. Those who have worked at the organisation for less than a year, for example, may receive full pay for five weeks, and half pay for a further five weeks. For those, who had more than five years’ service, they would receive 26 weeks full salary and a further 26 weeks half pay (Crossan, 2020).

On the flip side, for employees who are not entitled to receive contractual sick pay, Statutory Sick Pay can be claimed. In order to be eligible, claimants must be earning a minimum of £120 before tax per week. To test whether s/he qualifies for SSP employees submit a written document to their employer, if requested, before a set deadline (Crossan, 2020).

If any of our readers wish to obtain access to this form, we have provided a link below:

https://www.gov.uk/statutory-sick-pay/how-to-claim

Sick Pay Across the Globe

On the other side of the world, however, in the US organisations are not obligated or required by federal law to offer paid sick leave. However, the Family and Medical Leave Act, established in 1993, enables eligible staff members of insured employers to take unpaid, job-protected leave for specified family and medical reasons (U.S. Department of Labour, 2020). Even though, organisations are not legally obliged to pay staff members for sick leave under federal law, some states require companies by law to offer sick leave. An example of this is the state of Massachusetts which permits five days of sick leave for employees (Foothold America, 2020).

Furthermore, in Sweden, members of staff who cannot work due to sickness, can normally obtain compensation for the full period that they are off work. At the start of the time off, a deduction to 20% of the compensation of the sick pay that you can receive during a normal working week (European Commission, 2020). In order to be eligible to receive sick pay from the employer, staff members must have worked for a minimum period of one month minimum or have worked continuously for fourteen days (European Commission, 2020). Workers who are off work due to sickness for more than a week must provide a medical certificate. In addition, for employees who are sick for more than two weeks, the Swedish Social Insurance Agency can provide a sickness cash benefit. In order to secure this entitlement, staff members must be absent for a minimum of a quarter of their normal working hours as a result of sickness. Whether employees receive this compensation is determined by their ability to work and not the severity of the sickness, as well as whether they are medically insured and providing a medical certificate that describes the sickness or injury (European Commission, 2020).

Coronavirus

In recent times, the Coronavirus (COVID-19) outbreak has had a detrimental effect on businesses around the world. It started in China and has infected people from one hundred and eighy five different countries. The ONS (Office for National Statistics) reported that more than a quarter of the 5,316 businesses surveyed have temporarily shut down or paused trading for the period 23rd of March to 5th April due to the COVID-19 outbreak (ONS, 2020). The virus has affected the operations of many organisations: many have seen a decrease in turnover and some organisations have even been forced to cease trading indefinitely.

Boeing “Body Blow”

Multinational corporation, Boeing, is one of the most prominent companies to be hit by the effects of the virus. The company told BBC News that they may have to cut up to 15,000 jobs, after the travel industry has been torn apart by the pandemic, while 10% of jobs will be cut over the organisation, Boeing conceded that the losses would be more extreme in certain divisions, for example, its commercial airlines (BBC News, 2020).

Most importantly, the workforces of many organisations have faced challenges due to the virus. More than half of respondents to The Opinions and Lifestyle (OPN) Survey said Coronavirus has affected their wellbeing (ONS, 2020). Full results of the survey responses can be obtained from the following link:

https://www.ons.gov.uk/surveys/informationforbusinesses/businesssurveys/businessimpactofcoronaviruscovid19survey

But the big question is, does the right to sick pay (that traditionally has only ever been available to employees), still apply amidst a global pandemic?

Well, ACAS has advised that employees and workers should receive any Statutory Sick Pay (SSP) due to them as of 13th March 2020 from their first day of isolation if the following applies:

  • They have Coronavirus
  • They have Coronavirus symptoms (fever, new continuous cough)
  • Someone in their household is showing Coronavirus symptoms
  • They have been told to self-isolate by a doctor (NHS 111)

They then must follow the UK and Scottish government guidelines for self-isolation. The individual must self-isolate for seven days and anyone else who lives in their household must self-isolate for fourteen days. Some employers may offer more than SSP, known as ‘contractual’ sick pay, as previously mentioned.

If an employer requires proof of sickness, then the workplace’s normal sickness reporting procedures should be followed. As normal, an employee can self-certify for the first seven days of sickness, without a sickness note from a doctor. If self-isolating for a period that exceeds seven days, then an online self-isolation note can be obtained from the NHS website (ACAS, 2020). The following link will take readers to the NHS self-isolation page, whereby they can request a self-isolation note:

https://111.nhs.uk/isolation-note/

Probationary Periods

Another factor that has come under question frequently amidst the pandemic, is whether probationary periods are still in place. Probation is commonly a multi month process, during which there is consistent evaluation and feedback of the employee by the employer. Formal probation audit meetings and Probation Reports, are finished at customary intervals, typically following two, five and eight months (Forestry and Land Scotland, 2020).

The point of the procedure is to give the two parties sufficient opportunity to evaluate whether they are appropriate for one another. By finishing effective reviews and highlighting areas of improvements, you are likewise forestalling circumstances where you need to dismiss staff during their probation period (Willis, 2019). Employees who are currently serving their probationary period have not acquired enough service to be able to bring a claim for unfair dismissal (which is 103 weeks’ for employees who started on or after 6 April 2012), but there is potential to bring claims for workplace discrimination and whistle blowing. The following story, involving Eileen Jolly, is an example of how costly discrimination dismissal cases can be for employers.

Age Discrimination

Eileen Jolly, a medical secretary (89) has been named as one of the oldest employees to successfully win an age discrimination claim in the UK. The elderly woman was awarded £200,000 by the NHS after being dismissed over claims she was not capable of operating a computer. She was said to have “catastrophic failure in performance” after becoming accustomed to “old secretarial ways”. Not willing to sit back and take the discrimination, she took her NHS trust to an employment tribunal. The Judge present, Andrew Gumbiti-Zimuto wrote: “There was evidence of the claimant’s training having been inadequate, incomplete and ‘on the job’ training was ad hoc and not directed” (Smith, 2019).

New Guidelines

Thankfully, however, new Coronavirus guidelines have stated that many individuals currently on probationary periods will have their probationary period paused or extended (Forestry and Land Scotland, 2020).

Furlough

What is also important to discuss, is that due to the outbreak, businesses have been forced to furlough many of their workers as this will allow them to take advantage of the governments Coronavirus Job Retention Scheme (CJRS). To furlough an employee means to temporarily suspend or layoff an employee, this is usually done without pay. This term is most used in US employment law and is not recognised within the UK. Therefore, the term left many workers confused when Rishi Sunak, Chancellor of the Exchequer, used the word ‘furlough’ in his Coronavirus Job Retention Scheme (Bernal, 2020).

The ONS reported that for those businesses who were still trading in the UK, 21% of staff had been furloughed (under the terms of the CJRS) from the period of 23rd of March to the 5th of April (ONS, 2020). The CJRS allows employers to claim 80% of their employee’s wages from the government, up to a maximum of £2,500 a month – this includes those working on zero hours contracts and flexible workers. This is a temporary scheme in place for four months starting from the 1st of March 2020 – depending on the circumstances, the scheme could be extended. This allows companies to furlough employees rather than dismiss them. It is important to note that if a worker is self-isolating, they cannot be furloughed and should receive SSP until they return to work.

The minimum time period for furloughing workers is three weeks and they are not permitted to rotate which of their employees are furloughed; this can be difficult if someone who is still working is required to self-isolate/falls ill. It is important to note that if a worker is self-isolating, they cannot be furloughed and should be receiving statutory sick pay or enhanced sick pay (if in their contract) until they return to work. Due to this, CJRS cannot be claimed by employers for these employees to ‘make up’ any statutory sick pay/ enhanced sick pay they are receiving.

Employees who are ‘shielding’ (those who have been contacted by the NHS and are required to self-isolate due to extremely high risk of getting very ill due to COVID-19) for twelve weeks are permitted to be placed on furlough. Employers who insist that vulnerable employees continue to attend work at this time, where the work cannot be done at home, could be considered to be breaching their duty of care. The following case displays the effects of a breach of the employer’s duty of care in the workplace (ONS, 2020).

In Walker v Northumberland County Council [1995] ALL ER 737, the pursuer worked in an especially unpleasant social work post for the Council. He had just endured a breakdown because of exhaustion and an absence of help from his managers. His manager gave confirmations that protections would be set up upon his arrival from sick leave so as to decrease the dangers of stress. The pursuer came back to work yet endured a second breakdown in light of the fact that the Council had neglected to take sensible consideration to forestall him experiencing mental wounds. The follower brought a case for harms against the Council.

Held: by the House of Lords that the pursuer ought to be treated as an essential victim who was qualified for damages because of the Council’s carelessness. The Council had returned him to his past (unpleasant) post in the wake of knowing about the primary breakdown and it was, thus, reasonably foreseeable that if the claimant was exposed once again to these upsetting conditions he would almost certainly, this would make him endure mental injury.

Amazon Workers Fight Back

The severity of the current circumstances is evident in the following news story.

Several Amazon distribution centre specialists over the US will not appear for work this week by phoning in sick, denoting the biggest nationwide protest so far against the organisation’s response to Coronavirus. Beginning on Tuesday 21 April 2020, more than 300 Amazon employees have vowed to remain at home. This is as a result of rising disappointment amongst employees as the organisation has neglected to give adequate PPE to staff, failed to execute ordinary temperature checks it guaranteed at distribution centres and would not permit employees to take sick leave (The Guardian, 2020).

Employees of the multinational tech company are demanding sick pay and the right to not be punished for utilising their right to freedom of speech. While there has been no formal action or resolution as yet, Amazon did issue the following statement (The Guardian, 2020):

Nothing is more important than the safety of our teams. Our employees are heroes fighting for their communities and helping people get critical items they need in this crisis.

However, if we do not see change soon, could this be the start of the global e-commerce’s deterioration? We sure hope not.

Readers can access the full article, published by The Guardian below:

https://www.theguardian.com/technology/2020/apr/20/amazon-warehouse-workers-sickout-coronavirus

Disney to furlough workers

Disney is also an organisation that has been hit significantly by Coronavirus and as a result, a Disney representative presented the following statement: “With no clear indication of when we can restart our businesses, we’re forced to make the difficult decision to take the next step and furlough employees whose jobs aren’t necessary at this time.” (Godfrey, K., 2020).

We encourage our readers to watch the video presented to gain a deeper understanding of just much of an impact this pandemic is having on employment worldwide:

Conclusion

In conclusion, Statutory Sick Pay (SSP), is a well-known facility available potentially to most employees throughout the UK. It has been in place, in its current form, since 1982, aiding those unable to work due to sickness and other health related issues, it is a hugely worthwhile employment right. Now, more than ever, we are (unfortunately) having to analyse such an employment right as a highly debated topic because of the Coronavirus pandemic. However, whilst the pandemic continues to spread rapidly, the UK is also offering protection to those workers who do not normally qualify for Sick Pay, in terms of University Credit, Contributory Employment and Support Allowance. Luckily for these individuals, the UK Government has stepped in and has extended SSP during the Coronavirus lockdown. Overall, it is safe to say that SSP has been of great help in relation to sick workers with income support and although its usefulness may not always be apparent, it is times like this we truly start to appreciate the value of such employment rights.

References

ACAS, 2020. ‘Coronavirus (COVID-19): advice for employers and employees’ [online]. Available at: https://www.acas.org.uk/coronavirus/self-isolation-and-sick-pay [Accessed: 24thApril 2020].

BBC News, 2020. ‘Coronavirus: Boeing to cut 15,000 jobs in ‘body blow’ [online]​    Available at: https://www.bbc.co.uk/news/business-52468882 [Accessed: 29th April 2020]. 

Bernal, N., 2020. ‘The UK’s coronavirus furlough scheme explained by experts’ [online]. Available at: https://www.wired.co.uk/article/uk-furlough-scheme-job-protection [Accessed: 26th April 2020].

Crossan, S., 2020. ‘Pay day?’ [online]. Available at: https://seancrossansscotslaw.com/2020/04/05/pay-day/ [Accessed: 28th April 2020].

Employment Rights Act 1996

Employment Relations Act 1999

European Commission, 2020. ‘Employment, Social Affairs & Inclusion’ [online]. Available at: https://ec.europa.eu/social/main.jsp?catId=1130&langId=en&intPageId=4810 [Accessed: 28th April 2020].

Family And Medical Leave Act, 2020. ‘Are US workers entitled to paid sick leave?’ [online]. Available at: https://www.footholdamerica.com/faqs/employing-a-us-worker/entitled-to-paid-sick-leave/ [Accessed: 28th April 2020].

Forestry and Land Scotland, 2020. ‘Covid-19 Coronavirus: Employee Advice’ [online]. Available at: https://forestryandland.gov.scot/images/staff/covid-19/02.04.20/1._Covid19_Coronavirus_-_Advice_for_Employees.pdf [Accessed: 29th April 2020].

Godfrey, K., 2020. ‘IT’S A SAD WORLD Disney furloughs staff and cast members and stops annual pass payments as theme parks remain closed’ [online]​​​   Available at: https://www.jennyeve.co.uk/blog/buzzwordbusinessblog/david-goliath-and-employment-status [Accessed: 29th April 2020]. 

Hunt, D. 2020. ‘Coronavirus Job Retention Scheme: the details (26 March)’ [online]  Available at: https://www.farrer.co.uk/news-and-insights/blogs/coronavirus-job-retention-scheme-the-details/ [Accessed: 27th April 2020].

Jennyeve, 2017. ‘Making the employee/worker/self-employed distinction in 2017 and what it means for your organisation’ [online] Available at: https://www.jennyeve.co.uk/blog/buzzwordbusinessblog/david-goliath-and-employment-status [Accessed: 27th April 2020].

Paul, K., 2020 Hundreds of Amazon warehouse workers to call in sick in coronavirus protest; The Guardian [online] Available at:

https://www.theguardian.com/technology/2020/apr/20/amazon-warehouse-workers-sickout-coronavirus [Accessed: 27th April 2020].

Office for National Statistics, 2020. ‘Coronavirus, the UK economy and society, faster indicators Coronavirus, the UK economy and society, faster indicators: 16 April 2020’ [online]. Available at: https://www.ons.gov.uk/peoplepopulationandcommunity/healthandsocialcare/conditionsanddiseases/bulletins/coronavirustheukeconomyandsocietyfasterindicators/16april2020 [Accessed: 25th April 2020].

Rodgers, E., 2018. ‘Worker or employee? What is Employment Status?’[online]        Available at: https://www.perkbox.com/uk/resources/blog/worker-or-employee-what-is-employment-status [Accessed: 27th April 2020]. 

Smith, L., 2019. ‘NHS secretary, 89, sacked for ‘not being able to use computers’ wins £200,000’ [online]. Available at: https://www.mirror.co.uk/news/uk-news/nhs-secretary-89-sacked-not-20901143[Accessed: 29th April 2020].

Smith, L., 2019. ‘The 12 Most Notorious UK Discrimination Cases’ [online]. Available at: https://www.skillcast.com/blog/12-notorious-uk-discrimination-cases[Accessed: 29th April 2020].

UK Government, 2020. ‘Check if you can claim for your employees’ wages through the Coronavirus Job Retention Scheme’ [online]​​​​​​​​   Available at: https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme [Accessed: 25th April 2020]. 

U.S. Department of Labor, 2020. ‘Family and Medical Leave Act’ [online]. Available at: https://www.dol.gov/agencies/whd/fmla [Accessed: 28th April 2020].

Willis, A., 2019. ‘Dismissal During Probationary Period’ [online]. Available at: https://croner.co.uk/resources/end-of-contract/dismissal/dismissal-probationary-period/ [Accessed: 29th April 2020].

Copyright Rachael Holton, Ryan Kelly, Amy McWilliams and Jamie Watt, 28 April 2020

Published by

sjcrossan1

A legal blog by the author of Introductory Scots Law: Theory & Practice (3rd Edition: 2017; Hodder Gibson) Sean J. Crossan BA (Hons), LLB (Hons), MSc, TQFE I have been teaching law in Higher and Further Education for nearly 25 years. I also worked as an employment law consultant in a Glasgow law firm for over a decade. I am also a trade union representative and continue to make full use of my legal background. I am a graduate and postgraduate of the Universities of Dundee, London and Strathclyde. Please note that this Blog provides a general commentary about issues in Scots Law. It is not intended as a substitute for in-depth legal advice. If you have a specific legal problem, you should always consult a suitably qualified Scottish solicitor who will be able to provide you with the support that you require.

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