Statutory Sick Pay: Self-certification of illness in January 2022

A temporary regulation means that during the majority of the month of January 2022, employees can effectively carry out self-certification of illness.

The Statutory Sick Pay (Medical Evidence) Regulations 2021 (SI 2021/1453) were made in December 2021 and provide that an employee shall not be required by his employer to provide medical evidence in respect of the first 28 days of their incapacity to work.

Ordinarily, under the Medical Evidence Regulations 1985, an employee’s ability to self-certify illness is limited to seven days of sickness absence, after which employers may require the employee to produce evidence of their incapacity; such evidence is generally in the form of a fit note from the employee’s GP. The intention behind extending the period of self-certification of illness from seven to 28 days is to reduce the need for employees to visit their GP for medical evidence in relation to statutory sick pay, therefore increasing the capacity of GPs to support the COVID-19 vaccine booster drive.

This temporary regime will apply to spells of incapacity for work which either

1. start during the period 17 December 2021 to 26 January 2022; or
2. commence prior to 17 December 2021 but which have not lasted more than seven days on that date (so that the requirement to provide medical evidence has not yet arisen).

The modified period will not apply to spells of incapacity which begin after 26 January 2022 but will continue to apply to any spell of incapacity which is ongoing, having commenced prior to 26 January 2022 (other than those commencing more than seven days prior to 17 December 2021). For example, if an employee’s illness begins on 24 January 2022 these modified rules would apply and they could not be required by their employer to provide medical evidence for the full 28 day period. Contrast this with an employee whose illness begins on 27 January 2022; this employee may be required by his employer to provide medical evidence of his incapacity for work after the normal seven day period.

The government guidance on the issue, ‘Statutory Sick Pay: employee fitness to work’ [CC1] makes this change clear: “If an employee goes off sick on or after 10 December 2021, up to and including 26 January 2022, you cannot ask them for proof of sickness until they have been off for 28 days or more.”

Blog written by Michael Green, Paralegal at didlaw.