Ending of Covid-19-related easements to statutory sick pay rules from 25 March 2022

New statutory instruments

Two sets of regulations have been issued in relation to the ending of Covid-19-related easements to statutory sick pay (SSP) rules from 25 March 2022.

In force from 25 March 2022, the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2022 (SI.No.380/2022) revoke the provisions within the Statutory Sick Pay (General) Regulations 1982 which deem people to be incapable of work where they are unable to work either due to isolating themselves in such a manner as to prevent infection or contamination with coronavirus, or due to shielding themselves in such a manner as to prevent infection or contamination with coronavirus.

NB - in a report on the draft version of SI.No.380/2022, dated 2 March 2022 but published yesterday, the Social Security Advisory Committee (SSAC) strongly recommended that the DWP should delay introducing the legislation until its impact and consequences are fully assessed and, at a minimum, defer the commencement of the regulations until 1 April 2022 to coincide with the change in public health guidance on Covid-19. However, as confirmed by the explanatory memorandum to the regulations -

'The Secretary of State decided that it would be inappropriate to delay the coming into force of these regulations because the policy announcement had been made well over 21 days prior to the changes coming into force and because it would be likely to create practical difficulties for employers and employees if there were to be a late departure from the previous public announcement on 21 February. Additionally, as the changes to the suspension of waiting days will result from the expiry of section 40 of the Coronavirus Act 2020 on 24 March 2022, the Secretary of State considers that it is preferable for employers and employees for all SSP-related changes to occur at once, rather than delaying these regulations and creating confusion.'

Also in force from 25 March 2022, the Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days) (Saving Provision) Regulations 2022 (SI.No.381/2022) make savings provisions in relation to the expiry of section 40 of the Coronavirus Act 2020 which allowed regulations to be made to introduce easements including to disapply waiting day provisions for SSP where a period of incapacity for work is related to coronavirus.

The explanatory memorandum to SI.No.381/2022 advises that -

‘Section 40 expires at midnight on 24th March 2022 and, as a result, regulation 2 of the Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020 (the 2020 Regulations), which was made under that power, also expires. The effect of regulation 2 of the 2020 Regulations was that Statutory Sick Pay was payable from day 1 of a period of incapacity for work which is related to coronavirus, as opposed to day 4 as would otherwise be the case. Regulation 2(1) and (2) makes saving provision by providing that regulation 2 of the 2020 Regulations continues to have effect where a period of incapacity for work commences on or before 24th March 2022. This is subject to the modifications in regulation 2(3) which reflect the revocation of the deeming provisions contained in regulation 2(1)(c) and (d) and Schedules 1 and 2 of the Statutory Sick Pay (General) Regulations 1982.’

SI.No.380/2022 and SI.No.381/2022 are available from legislation.gov.uk

Update (28 April 2022) - in its 37th Report of Session 2021-22, the House of Lords Secondary Legislation Scrutiny Committee has criticised the DWP for its failure to explain why the publication of revised public health guidance on 1 April 2022 was not co-ordinated with the changes made to SSP by the new regulations from 25 March 2022, or why the SSAC was not provided with advance sight of it. The Committee says that, despite the DWP having responded seriously to the SSAC’s concerns, the fact that the follow-up analysis relied on confidential information 'frustrates the purpose of independent scrutiny'.