Statutory sick pay when an employee is in legal custody

08 September 2016

A recent update on GOV.UK started the questions flowing and as a reminder of how being in Legal Custody would impact on eligibility for SSP, we thought that you might value seeing a couple of examples used to demonstrate the impact.

The guidance that has been updated is under Statutory Sick Pay (SSP): employee circumstances that affect payment. It covers what you need to do when paying sick pay to an employee who is:

  • pregnant
  • in legal custody
  • in a trade dispute
  • has overpaid or underpaid, or
  • earns below the Lower Earnings Limit.

Updated content:

Your employee is in legal custody

A Period of Incapacity for Work (PIW) ends (or if day 1 does not arise) with the start of the legal custody and SSP is no longer payable. However, if the incapacity for work continues, a new PIW is formed after release from legal custody regardless of the illness – whether continuing or a new one or a deterioration of the original ailment after an early return to work - and providing all other qualifying rules apply SSP should be paid. If there is less than 8 weeks between the PIWs then the usual linking rules apply and waiting days do not have to be served again. If more than 8 weeks between the PIWs, normal waiting days would apply.

If an employee is sick and is unable to work and then arrested and taken into legal custody, any entitlement to SSP ends.

Impact on eligibility - these are the examples used to demonstrate the impact on eligibility for SSP:

Scenario 1

If the employee is taken into custody on the 1st day of sickness a PIW cannot start and they will not be considered for entitlement to SSP. Once released if they are still employed and incapable for work due to sickness they should inform their employer they are sick and usual rules apply e.g. the sickness lasts for 4 days or more a period of incapacity(PIW) has been formed and usual linking rules apply.

Day 1          1st day of Sickness and taken into legal custody = no PIW and not entitlement to SSP.

Days 2,3,4   Still sick and still in custody = no PIW and not entitled to SSP.

Day 5           Released from custody still sick = no PIW and no entitlement to SSP as has spent some time in legal custody for part of that day.

Days 6,7,8,9         Still sick (can be continuing illness or new illness) and unable to work and meets qualifying conditions = has formed PIW on day 9.

  • The employee is entitled to SSP from day 9 (must serve 3 waiting days) if this claim does not link to another PIW within 56 days or less; or
  • The employee is entitled to SSP from day 6 if the employee was absent from work for 4 or more days within 56 days of day 6 (days spent in legal custody do not count towards waiting days or PIWs).

Scenario 2

The employee has already formed a PIW that links to a previous PIW and has served their waiting days. They are in receipt of SSP and were off work sick for 10 days then arrested and taken into legal custody on day 11.  That PIW ends after 10 days along with any further entitlement to SSP.  Once released if they are still employed and incapable for work due to sickness they should inform their employer they are sick and usual rules apply e.g. the sickness lasts for 4 days or more a 'new' period of incapacity(PIW) has been formed and usual linking rules apply.

Days 1-10             Incapable of work due to sickness and meets all eligibility conditions = PIW formed and entitled to SSP for all qualifying days (days usually works) in those 10 days.

Day 11                   Taken into Legal Custody = PIW ends and entitlement to SSP ends.

Day 12                   Released from custody still sick =No PIW and no entitlement to SSP as has spent some time in legal custody for all or part of that day.

Day 13-17             Still sick (can be continuing illness or new illness) and unable to work and meets qualifying conditions = has formed PIW which links to the PIW on day 10 (the last day of sickness before being taken into custody) so entitled to SSP for all qualifying days from day 13.

In a nutshell there is no entitlement to Statutory Sick Pay for any days spent in legal custody.