Phased return to work and SSP

My client has been off work sick with anxiety. His GP has provided him with a ‘fit note’ stating that he is well enough to undertake a phased return to work, but is not able to return to his full time regular hours working 5 night shifts a week. He is working 2 shifts a week

Can any one tell me if he is able to claim Statutory Sick Pay for the other 3 days each week? His GP has confirmed that he’s not capable of full time work, but I don’t know that that is the same as being incapable of for SSP purposes

I’m aware that it’s the employer making the decision so I want to know if there’s any point in advising him to ask (employer is a large UK retailer so should have decent employment/HR knowledge)

Thanks

Thanks Tony.

So you interpret it that although the separate periods of incapacity will be linked, he will only be able to claim SSP if each is for 4+ days?

I thought that the 3 waiting days only applied at the start of the first period of incapacity

Section 155(1) states that “statutory sick pay shall not be payable for the first three qualifying days in any period of entitlement.”  This makes two things clear.  First, SSP is payable after three days and second those three days must be usual working days under reg 5 of the SSP Regs,  unless the employer and employee have agreed otherwise within the terms of that reg.  If two periods of entitlement are linked under the linking rules then the claimant does not have to serve the waiting days again.

Thanks - He’s worked Sunday and Monday so that simplifies things.

He’s already asked his employer if they’ll pay so I’m going to wait and see what they come back with. My experience of the Statutory Payments Dispute Team is that they want you to contact the employer first anyway

We’ve had a query about phased return and SSP. Are there any further thoughts on whether SSP can, in practice, be paid for the “off-sick” days, as stated above?

Thanks for anything you can come up with Tony.

Just doing some further reading on the linking question, Gov.uk advice to employers is:

If you agree a phased return to work or altered hours after a period of sickness, pay SSP for the days that your employee is sick in the normal way. Any day for which SSP is paid will count towards the maximum entitlement of 28 weeks. Your employee’s absence must form a PIW before SSP is paid.

https://www.gov.uk/statutory-sick-pay-employee-fitness-to-work

DRH p58 says “Further spells of sickness must be at least four or more days in a row to link with a previous SSP PIW”.

For what it’s worth, this random page from a financial services company about phased returns agrees on the definition of further PIW being at least four days of sickness: http://www.cch.co.uk/cch2011/fee_protection/CCH857Statutory_Sick_Pay_and_Phased_Returns_to_work.pdf

So, I’m thinking it comes down to the pattern of the phased return. The 4 days would be calendar days, not working days, i.e. can include weekends etc.