Employees in paid work, including supply teachers, may qualify for Statutory Sick Pay (SSP) which is payable by the employer, subject to eligibility and rules on notification set out by the employer.
Your contract of employment
As a supply teacher, your rights and entitlements for sick pay should be set out in the overarching contract of employment that you have with your agency and/or umbrella company.
The agency and/or umbrella company must provide details of your sick pay entitlement in your written statement of employment particulars. From 6 April 2020, this must be provided to all workers and employees from day one.
In addition, for agency workers such as supply teachers, they must be given a Key Information Document (KID) containing the key terms and conditions that govern assignments, on or before the engagement start date, including the provisions in relation to sickness absence and sick pay. This is in addition to the right to a written statement of employment particulars.
Your employer may have an occupational scheme that is at least as good as SSP, but in the absence of any contractual sick pay, supply teachers may be entitled to SSP provided they meet the Government eligibility criteria.
An eligible supply teacher could receive £95.85 per week SSP for up to 28 weeks, depending on whether they have targeted three months’ continuous employment with their employer. This should be paid in the same way as the employer pays wages, and on the same day.
For the purposes of SSP for agency workers, such as supply teachers, continuous employment is not broken by periods of sickness or annual leave or when the agency is unable to offer work.
Further details regarding the eligibility for SSP for supply teachers:
They must be an employee of the employer (e.g. agency or umbrella company) and have undertaken some work under their contract of employment, although they do not have to have received payment in order to qualify. This means that a supply teacher who has only just started working may qualify for SSP even if they have not been paid yet.
Social security legislation uses a broader definition of ‘employee’ for the purposes of SSP, which means that supply teachers as agency workers may receive SSP if they meet the eligibility criteria and the agency and/or umbrella company is liable to pay National Insurance Contributions (NICs) for the supply teacher.
Earnings must be at least as much as the Lower Earnings Limit (currently £120 per week from 6 April 2020) for National Insurance Contributions (NICs) that apply on the first day of sickness, or if the level of pay varies, it will depend on the average over the previous eight weeks.
If a supply teacher has a contract with more than one agency and their earnings are aggregated for the purposes of NICs, they must be incapable of work under all their contracts before they are entitled to SSP.
Furthermore, a supply teacher cannot combine earnings from different contracts to meet the threshold outlined above, unless those jobs are with the same employer. However, a supply teacher undertaking two or more assignments with different agencies may be able to claim SSP from both agencies if they earn at least £120 in both assignments.
Where a supply teacher has not been working for an agency for eight weeks, SSP is calculated by reference to the amount of pay the supply teacher is due to be paid under their contract (e.g. the daily rate or the rate agreed for a longer term assignment).
Supply teachers who earn less than the £120-per-week threshold, or who are self-employed, are not entitled to SSP.
SSP is payable for a ‘period of incapacity for work’. With the exception of Covid-19-related absences, this is any period of four or more calendar days in a row, known as ‘waiting days’. This includes weekends, bank holidays and non-working days where an employee is incapable of work due to illness.
If there are fewer than four consecutive days in a ‘Period of Incapacity for Work’, there is no SSP due.
SSP can only be claimed for days counted as ‘qualifying days’. These are usually the days normally worked as set out in the contract of employment.
In the case of a supply teacher with no standard working work, the qualifying days may be set by agreement with the employer. If the days have not been agreed, then Wednesday is usually deemed as a qualifying day to ensure that an individual can still receive SSP for a week in which they would not normally work.
‘Periods of incapacity for work’ are linked and treated as one ‘period of incapacity for work’ if the gap between them is eight weeks (56 days) or less, irrespective of whether or not the reasons for the absence are linked.
The subsequent periods of sickness must be four or more days in a row to form another ‘period of incapacity for work’.
If an employee returns to work and falls ill again within the same period (as described above), waiting days do not apply.
Any periods of sickness that are less than four days or more are ignored, as SSP only applies to ‘periods of incapacity for work’.
Tables for linking ‘periods of incapacity for work’ can be found at Statutory Sick Pay: tables for linking Periods of Incapacity for Work.
Entitlement to SSP covers any period of illness up to a maximum of 28 weeks. How this is used up is dependent on the working pattern of the employee. For example, if an employee works two days per week and is paid SSP for these two days, then this uses up one week of SSP, whereas an employee will only use up 0.4 of a week’s entitlement if they are paid SSP for the same two days, but works five days per week.
Once the maximum entitlement to SSP has been paid, an employee/supply teacher must return to work for more than 56 days for a new entitlement to SSP to begin.
A supply teacher is deemed to have been incapable of work for the whole day if they arrive for an assignment but do not do any work before they go sick. However, if a supply teacher undertakes any work, no matter how long, that day cannot be treated as a day of incapacity for the purposes of SSP.
There is no need for an employer to show SSP separately on payslips as long as the statutory minimum is paid.
A daily rate of SSP is needed to pay SSP for part of a week. The daily rate of SSP is the weekly rate divided by the number of ‘qualifying days’ in that week.
As a supply teacher, if the number of ‘qualifying days’ varies, the calculations may need to be done separately for each week.
An employee works full-time, Monday to Friday. They fall ill on Sunday and are sick until the following Sunday. There is a ‘period of incapacity at work’ of eight days of consecutive illness.
The first three days (Monday to Wednesday) are discounted as these are ‘waiting days’. The employee is paid SSP for the remaining two ‘qualifying days’ in that ‘period of incapacity at work’ (Thursday and Friday).
The employee will receive £38.34 (£95.85 x 2/5 = £38.34).
If the period of receipt of SSP straddles different tax years, the calculations should reflect the old and the new rates for each relevant period.
SSP is not payable if a supply teacher is getting any form of statutory paid leave, e.g. Statutory Maternity Pay; Statutory Adoption Pay.
Providing evidence of the incapacity for work
To claim SSP, a supply teacher must notify the employer about their sickness absence.
A supply teacher should be told by their employer, often in the overarching contract of employment, what they are expected to provide as evidence of their incapacity for work and when this should be provided.
However, a supply teacher cannot be required to notify their employer in person, nor can an employer withhold SSP for the submission of late medical evidence by a supply teacher.
In addition, a supply teacher does not have to provide a doctor’s certificate (e.g. a ‘Fit Note’) for the first seven days of their incapacity for work, as a supply teacher is able to self-certificate.
Disputes over SSP
If there is a dispute as to whether or not a supply teacher is entitled to SSP (or where entitlement to SSP has come to an end), the employer should set out its reasons using Form SSP1 and send it to the supply teacher.
If appropriate, a supply teacher can contact the HMRC Statutory Payment Dispute Team within six months of the refusal to pay.
Supply teachers, including those working as agency workers through an employment business, may be eligible for SSP from the first day of sickness (as opposed to the fourth day) under temporary revisions introduced to support individuals who are ill from Covid-19 or are required to self-isolate in line with Government advice and guidance.
The key change to the payment of SSP for employees affected by Covid-19 is the removal of ‘waiting days’. Ordinarily, SSP is not payable for the first three days. However, during the current pandemic, employers are required to pay qualifying employees, including supply teachers, from day one of absence due to Covid-19, as opposed to the normal fourth day of absence. Nevertheless, an eligible supply teacher still needs to be absent for four or more days to be entitled to SSP.
In addition to this, access to SSP has been temporarily extended to cover individuals who are unable to work because they have been advised to self-isolate, as well as people caring for those within the same household who display Covid-19 symptoms and have been told to self-isolate.
Those eligible supply teachers who are self-isolating are able to obtain a notification via NHS 111, which can be used as evidence of absence from work.
As far as reasonably practicable, any absence should still be reported in the normal way laid out by the employer, although a supply teacher is still able to self-certificate for the first seven days.
However, it should be noted that, due to the Covid-19 pandemic, individuals may not be able to visit their GP to obtain a Fit Note.
Supply teachers may also be eligible for SSP in situations where they may be shielding as a ‘clinically extremely vulnerable’ individual. However, SSP is intended as a safety net, and, since 1 November 2020, it may be possible for a supply teacher to be placed on furlough, even if they were not previously furloughed under the original Coronavirus Job Retention Scheme (CJRS).
An eligible supply teacher would receive £95.85 for each week of self-isolation (£191.70 in total), irrespective of the number of days worked.
It is important to note that the changes to SSP identified above do not change the eligibility conditions for SSP, so supply teachers are advised to carefully check against the eligibility criteria.
Furthermore, the Covid-19 entitlement to SSP from day one is not an additional entitlement, meaning that any previous ‘periods of incapacity for work’ may be linked for the purposes of calculating SSP.
The extended Coronavirus Job Retention Scheme and SSP
The Government has extended the Coronavirus Job Retention Scheme (CJRS) until April 2021. The CJRS extension reflects the scheme as it was prior to September 2020, meaning that employees receive up to 80% of their wages, capped at £2,500 per month in the form of a grant claimed from the Government by the employer.
The Government advice and guidance for the extended CJRS makes it clear that employers can still claim for supply teachers, including during school holiday periods, provided they meet the usual eligibility criteria.
As a supply teacher, if you are signed off on long-term sick leave and in receipt of SSP, your employer may be able to put you on furlough, provided that you are no longer in receipt of SSP.
If you are furloughed and become sick, there is nothing to stop your employer paying you at your furloughed rate, provided this is at least the equivalent of SSP.
Furthermore, there is nothing that prevents your employer from topping up the salary you receive so it exceeds the 80% under the CJRS.
However, the Treasury Direction which underpins the CJRS, specifically paragraph 6.1, makes it clear that an employer can only claim for an employee who is flexibly furloughed if they have been instructed by the employer not to work for the employer during a claim period, or not work their ‘usual hours’, and that this is because of circumstances arising as a result of the coronavirus disease or measures taken to prevent or limit its further transmission.
Small employer refund scheme
Under temporary revisions due to the Covid-19 pandemic, employment businesses and umbrella companies with fewer than 250 employees (on the payroll as of 28 February 2020) are able to claim a government reimbursement of up to two weeks of SSP payments made to each eligible employee who is unable to work because of Covid-19.
As such, the NASUWT maintains that it is entirely consistent for supply agencies and/or umbrella companies with fewer than 250 employees to pay SSP to eligible supply teachers in circumstances where they are ill from Covid-19 or are required to self-isolate in line with Government advice and guidance.
Further advice and guidance
For further advice and guidance, please contact the NASUWT. We can help with information and advice to support you regarding SSP. We will be happy to discuss your circumstances and answer your questions.