Section 22: Injury allowance
22.1 This section contains provision for an injury allowance to be paid to eligible employees1 who, due to a work related injury, illness or other health conditions are on authorised sickness absence or phased return to work with reduced pay or no pay. It also makes provision for the protection of pay in certain circumstances.
22.2 This section should be read in conjunction with section 14 (England), section 14 (Wales) or section 14 (Scotland and Northern Ireland) and annex 26. It does not confer an additional period of sickness absence entitlement to eligible employees.
22.3 Eligible employees who have injuries, diseases or other health conditions that are wholly or mainly attributable to their NHS employment, will be entitled to an injury allowance, subject to the conditions set out in this section. The injury, disease, or other health condition must have been sustained or contracted in the discharge of the employee's duties of employment or an injury that is not sustained on duty but is connected with or arising from the employee's employment.
22.4 The attribution of injury, illness or other health condition will be determined by the employer who should seek appropriate medical advice2. In all cases the employer should use the civil burden of proof - "on the balance of probability" (more likely to than not) - to determine the outcome. Where the employee disagrees with the employer's decision then they are entitled to appeal the decision through local grievance procedures (see paragraph 22.16).
22.5 Employees claiming injury allowance are required to provide all relevant information, including medical evidence, that is in their possession or that can reasonably be obtained, to enable the employer to determine the claim.
22.6 Payment of injury allowance is not dependent on length of service.
22.7 The following circumstances will not qualify for consideration of injury allowance:
- injury whilst on a normal journey travelling to and from work, except where the journey is part of their contractual NHS duties
- sickness absence as a result of disputes relating to employment matters, conduct or job applications
- injury, disease or other health condition due to or seriously aggravated by the employee's own negligence or misconduct.
Scale of injury allowance
22.8 Injury allowance will be paid to eligible employees as a top up to their sick pay or earnings when on reduced pay, including when on phased return. This calculation will include any contributory state benefits received by the employee to 85 per cent of pay as defined in paragraph 14.4 in Section 14 (Scotland and Northern Ireland), paragraph 14.4 in Section 14 (England) and paragraph 14.4 in Section 14 (Wales).
22.9 The injury allowance payment is subject to National Insurance Contributions and income tax but is not subject to pensions contribution deductions.
2.10 Contributory state benefits received for loss of earnings will be offset at the rate at which they are actually received by the employee. All other benefits or payments received should be ignored.
22.11 Eligible employees are required to claim any contributory state benefits they may be entitled to and to declare receipt of such benefit(s) to their employer. Timely notification will ensure that overpayments of injury allowance are not made. Employers will require repayment when an overpayment is made.
22.12 The allowance will be restricted to a period of up to 12 months per episode, subject to local absence management, return to work and rehabilitation policies.
Using injury allowance to support return to work
22.13 Eligible employees who make a phased return to work can receive the injury allowance as a pay top up to 85 per cent of pay as defined in paragraph 14.4 (Scotland and Northern Ireland), paragraph 14.4 in Section 14 (England) and paragraph 14.4 in Section 14 (Wales), if their pay is reduced during an employer approved period of rehabilitation, subject to the timescales set out in paragraph 22.12. (See also Annex 26 for details of phased return arrangements).
22.14 Eligible employees who have to change jobs permanently to a position on lower pay due to a work related injury, illness and/or other health condition, will receive a period of protected pay that is the same as local provision for pay protection during organisational change.
Recovery of overpayment of injury allowance
22.15 An employer can seek to recover any overpayments made to an employee. Where recovery is necessary employers should take into account the period of time the overpayment was in place when agreeing the programme of repayments.
22.16 Any disputes that arise due to the local application of injury allowance provisions should be handled via local grievance procedures.
For employees not covered by the NHS Terms and Conditions of Service Handbook or who are no longer working for an NHS employer, the provisions in this Section will apply as specified in individuals' contracts of employment and should be read alongside the relevant contractual documents.
2 See the question and answer guidance in Annex 28 (England and Wales) or Annex 28 (Scotland and Northern Ireland).
Amendment number 39: NHS TCS Advisory Notice 01/2018