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SPM200800 | Change in Circumstances - employee in legal custody

From HM Revenue & Customs · Statutory Payments Manual

‘Legal custody’ means that the person concerned is detained, usually arrested or in prison.

A person is not in legal custody if they are:

  • voluntarily helping the police with their enquiries

  • out on bail

  • serving a suspended sentence.

It is the employee’s responsibility to tell the employer if they are taken into legal custody.

SSP

A period of incapacity to work (PIW) ends, along with any current entitlement to SSP if an employee is taken into legal custody.

A new PIW cannot begin for any existing or new illness until the day after release. Usual linking rules apply.

SMP

An employer has no liability to pay SMP if the employee is in legal custody at any time within the first week of her MPP.

If she is taken into legal custody during her MPP, there is no liability to pay SMP for

  • the week in which she is first taken into custody, and

  • for any subsequent weeks in the MPP even if the detention in legal custody or sentence to a term of imprisonment comes to an end before the end of the MPP.

They may be able to claim social security benefits instead, so the employer must give the employee form SMP1 and return her maternity certificate MATB1, keeping a copy for their payroll records.

It is the employee’s responsibility to tell the employer if they are taken into legal custody.

ShPP/SPBP

An employer is not liable to pay ShPP during any part of which the person entitled to ShPP is detained in legal custody or sentenced to a term of imprisonment, except where the sentence is suspended.

However, there is a liability to pay ShPP where the employee is

  • Released subsequently without charge.

  • Subsequently found not guilty of any offence and is released.

  • Convicted of an offence but does not receive a custodial sentence.

Regulations 14(1) and (2) and 26(1) and (2) of the Statutory Shared Parental Pay (General) Regulations 2014

Regulation 9 of the Statutory Parental Bereavement Pay (General) Regulations 2020

SAP/SPP

There is no entitlement to SAP/SPP for any week in which an employee is in legal custody.

Regulations 18(c), 27(1)(c) and 27(2) of the Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002 (SI2002/2822)

Regulation 27(1)(c) and 27(2) of the Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations (Northern Ireland) 2002 (SR2002 No.378)

If an employee is released from legal custody within the APP/ShPP period, HMRC is liable to pay any remaining SAP/ShPP. The APP/ShPP period is not extended beyond the original date. (There is no entitlement to any subsequent SPP/ShPP if released from legal custody)

Regulation 44 of the Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002 (SI2002/2822).

Regulation 44 of the Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations (Northern Ireland) 2002 (SR2002 No.378).

Regulation 46 of the Statutory Shared Parental Pay (General) Regulations 2014

SNCP

An employer is not liable to pay SNCP during any part of which the person entitled to SNCP is detained in legal custody or sentenced to a term of imprisonment, except where the sentence is suspended.

However, there is a liability to pay SNCP where the employee is

  • Released subsequently without charge.

  • Subsequently found not guilty of any offence and is released.

  • Convicted of an offence but does not receive a custodial sentence.

Regulations 12(1) and (2) and 30(1) and (2) of the Statutory Neonatal Care Pay (General) Regulations 2025