STATUTORY SICK PAY FOR AGENCY WORKERS
Statutory Sick Pay (SSP) is payable for up to 28 weeks to employees who are unable to work because of illness providing they meet specified qualifying conditions. The qualifying conditions specify situations when entitlement does not arise and previously included the non qualifying condition “where contracts of service were for three months or less.” This exclusion was removed in 2002 when legislation was introduced that provided for employees who were in fixed term employment to be treated equally with other employees who were in permanent employment.
However, in June 2007 a High Court judgment ruled that the changes to SSP legislation made for fixed-term employees had no impact on agency workers. This decision meant that agency workers who do not have a contract, or a series of contracts, for more than three months were not entitled to SSP. They are the only group of employees who are not eligible for SSP.
As a consequence, the Fixed-term Employees (Prevention of Less Favourable Treatment) (Amendment) Regulations 2008 is coming into force to ensure agency workers are treated in the same way as all other employees with regard to entitlement to SSP. This applies whether they are indirectly or directly employed, regardless of the length of their contract.
Therefore, agency workers employed under a fixed-term contract have the right to statutory sick pay from 27 October 2008. They will, of course, have to meet the usual SSP qualifying conditions.
Not the most riveting of updates we accept but one that may have more impact in coming months, especially if employers decide to delay permanent recruitment and use agency staff instead whilst they assess future employment requirements.
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