Just what the doctor ordered (or not…)

Without any fanfare at all, the Government has slipped out a new regulation – the Statutory Sick Pay (Medical Evidence) Regulations 2021. This Regulation does one thing and one thing only: It increases the period of time before an employee has to get a doctor’s fit note from 7 days to 28 days.

Or does it?

What this new Regulation actually does is amend the similarly named 1985 Regulations. Under Reg 2(2) of that Regulation (as amended), “An employee shall not be required under section 17(2) of the 1992 Act to provide medical information in respect of the first 7 days in any spell of incapacity for work”.

The 1992 Act is the Social Security Administration Act 1992, specifically section 14, which provides at subsection (1) as follows: 

Any employee who claims to be entitled to statutory sick pay from his employer shall, if so required by his employer, provide such information as may reasonably be required for the purpose of determining the duration of the period of entitlement in question or whether a period of entitlement exists as between them.

It goes on to say that regulations may be made that proscribe for what period an employee does not need to provide such evidence – i.e. for what period an employee may self-certify. Those are the regulations that we have just been looking at. They used to say 7 days, and now say 28 days. 

So what does this mean?

In short, when determining the period during which an employee is entitled to SSP, an employer may only require that employee to provide a fit note after 28 days absence. 

But what about other purposes? What about management of employees or monitoring absence periods? In particular, does this apply when an employer is trying to get a handle on tricky employee who has had a pattern of persistent absences?

The short answer is no. 

There is nothing to stop an employer demanding a doctor’s certificate on the third or seventh or 14th or 21st day of absence – or, indeed, the first (although how practical that would be is another question). The only caveat to this is that the employer cannot use the lack of a doctor’s certificate as a reason not to process SSP until the 28th day has passed without evidence being provided. 

Most employers’ standard contracts include a term that a fit note must be provided after 7 days’ absence. I expect this common practice has come about because it reflected the 1985 Regulations. However, there was nothing to stop an employer contractually demanding the fit note earlier, provided that it did not say “you did not provide your fit note on day 4, and therefore we aren’t going to process your statutory sick pay from that day”. It was only after day 7 that the employer could make such a demand – so under the old rules, would have to pay SSP for days 4, 5 and 6 even though there was no sick note.

So the reality is that these new regulations have made very little difference. The purpose was to reduce the workload on GPs, so they could focus on rolling out the COVID-19 booster. But unless employers are going to also waive their contractual rights to see evidence sooner, this change might have less impact than the Government has intended.

It is also worth noting that this new regulation only applies to people who start a period of sickness absence that begins between 11 December 2021 and 26 January 2022 (Reg 2(2)). So in any event, it will only apply to a small cohort of employees – unless it is extended in the New Year.

This article was written by Tim Goodwin, a member of 12 King’s Bench Walk’s employment team.

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