(b) Period of incapacity for work

(b)     Period of incapacity for work

A period of incapacity for work is essentially any period of four or more consecutive days on each of which the employee is incapable of working. Determining whether there is a period of incapacity for work involves two questions. The first (and obvious) question is: was the employee actually ill—too ill to work—on each day? The second question is whether the employee's sickness lasted long enough to qualify.

(i)     Incapacity

As far as the first question is concerned, the employee must not only be ill; he must be ill as defined. The relevant definition is found in SSCBA 1992 s 151(4) and is specific to SSP; tests applied in the context of other state benefits, such as whether an employee has 'limited capability for work', are irrelevant.

The definition in s 151(4) provides that 'a day of incapacity for work… means a day on which the employee… is incapable by reason of some specific disease or bodily or mental disablement of doing work which he can reasonably be expected to do under [his] contract'. Clearly both physical and mental incapacity are covered by this definition. However, the reference to disease or disablement means that bereavement as such is not an incapacity – although depression and anxiety caused by the loss may well be. An employer receiving a fit note giving bereavement as the reason for absence will therefore need to decide whether to accept this as an incapacity, and if not will need