Statutory Sick Pay for agency workers

gerard1789

I am an agency worker and with the same agency since February 2017. I was injured at work (a one day assignment) on the 16th of December 2017 which resulted in a 30 day sick leave. On the 2nd of January, the agency stated that they were not liable to pay SSP as I has not been working in the same assignment for 3 months and advised me to direct my claim for entitlement to DWP. After receiving confusing and contradicting informations from HMRC, DWP and others, I have decided to investigate this matter myself.

The Fixed Term Employees (Prevention of Less Favourable Treatment) Amendment Regulations 2008

With reference with the above captioned amendment, I would very much appreciate your guidance and comments on the subject.

After reading this amendment, I understand that it was drafted to enable agency workers with contracts of three months or less to have the same access to Statutory Sick Pay (SSP) as other workers. Its purpose is to ensure agency workers are treated in the same way as all other employees with regard to entitlement to SSP, wether they are directly or indirectly employed, regardless of the length of their contract. Any person who is treated as an employee for National Insurance purposes is also treated as an employee for SSP purposes.

There seems to be some confusion and contradictions within the various state and trade relations bodies (HMRC, DWP, ACAS and BIS now defunct) as for the interpretation of the law.

BIS in their Agency Workers Regulations, Guidance, 2011, states that "The law* coming into force on 1 October 2011, giving agency workers the entitlement to the same basic employment and working conditions as if they had been recruited directly, if and when they complete a qualifying period of 12 weeks in the same job". (*) The Agency Workers Regulation 2010, The Agency Workers (Amendment) Regulations 2011.

This contradicts the spirit and terms of The Fixed Term Employees (Prevention of Less Favourable Treatment) Amendment Regulations 2008.

BIS also states that "Pay excludes occupational sick pay (the regulation do not affect an agency worker's statutory entitlement to statutory sick pay)".

I understand therefore that an agency worker is entitled to statutory sick pay and my assumption is that the agency is liable to pay SSP.

HMRC, DWP, ACAS have offered comments, mostly confirming that agency workers are only entitled to SSP if and when in the same assignment for a period of 12 weeks. Some comments from DWP especially have sometimes contradicted that interpretation of the law.



Could it be that the wording of the law The Agency Workers Regulation 2010 has caused the possible misrepresentation or misunderstanding of the law?

The Agency Workers Regulation 2010 in effect list as a Pay Exclusion:


(2) For the purposes of paragraph (1)(a), “pay” means any sums payable to a worker of the hirer in connection with the worker’s employment, including any fee, bonus, commission, holiday pay or other emolument referable to the employment, whether payable under contract or otherwise, but excluding any payments or rewards within paragraph (3).

(3) Those payments or rewards are—

(a)any payment by way of occupational sick pay;

The Amendment of the law in 2011 do not specify or rectify this pay exclusion although SSP is a statutory right for an agency worker as stated in The Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and its Amendment 2008.

I have to admit that I am still confused and will remain unsure of my argumentation unless it has been confirmed or not.

I would very much welcome your views on the matter.

pmlindyloo

This link might help because it may depend on what kind of agency worker you are and what your contract says.

https://www.citizensadvice.org.uk/work/rights-at-work/agency-workers/agency-workers-what-you-need-to-know/

Has your employer given you an SSP1 form so that you can claim ESA?

Or, are you not eligible for ESA?

In any case, the first step is to get this form from your employer.

Useful link in the above link about this too.