First-tier Tribunal (Tax)

[2010] UKFTT 454 (TC)

TC00719

Appeal number TC/2009/12918

Statutory Sick Pay – whether an employee unfit to work due to incapacity or illness – employer disputed employee’s entitlement to SSP due to frequent sports injuries – whether SSP payable – yes

FIRST-TIER TRIBUNAL

TAX

ABER ROOF TRUSS LIMITED Appellant

-       and –

THE COMMISSIONERS FOR HER MAJESTY’S

REVENUE AND CUSTOMS Respondents

TRIBUNAL: Mr Michael S Connell (Tribunal Judge)

 Mr J E Davison  (Member)

Sitting in public at Newcastle upon Tyne on 29 July 2010

Mr Hopkins of the Appellant company confirmed to the Tribunal Service that he would not be attending the hearing

Mrs A Johnson, presenting officer of HMRC represented the Respondents :

© CROWN COPYRIGHT 2010

DECISION

1. This is an appeal by Mr William Hopkins, who is a director of the Appellant company, against the decision made on 12.01.09 by HMRC that, from 05.06.08-20.06.08 Mr Kevin Glyn Adams was entitled to Statutory Sick Pay (SSP) at the weekly rate of £75.40 and that the Appellant is liable to pay SSP to Mr Adams amounting to £135.72.

2. Entitlement to SSP is dependent upon certain qualifying conditions.  In accordance with s.151 of the Social Security Contributions and Benefits Act 1992, employers are liable to pay SSP to employees who satisfy all the conditions.

3. To be entitled to SSP an employment must (inter alia) :

·       Be unfit for work due to incapacity or illness;

·       Be employed by an employer who is liable to pay National Insurance contributions on their earnings; and

·       Must have averaged weekly earnings of at least the lower earnings limit for National Insurance purposes

4. In this case all the conditions were satisfied, save that the Appellant disputed that Mr Adams was unfit for work due to incapacity or illness.

5. Mr Adams worked for the Appellant company as a fabricator.  Mr Adams’ normal working days were Monday-Friday, being the qualifying days within the meaning of s.154 of the 1992 Act.

6. An employee must notify his employer when he is sick and unable to work.  Sickness must be notified within the period set by the employee on or before the 7^th day of absence.

7. An employee is not required to provide medical information in respect of the first seven days of incapacity for work.  The employer may require evidence of incapacity from the 8^th day of absence.

8. Mr Adams was off work from 05.06.08-20.06.08.  SSP is not payable for the first three qualifying days – which were 05, 06 and 09.06.08.

9. The weekly rate of SSP from 06.05.08 is £75.40.  Because there were five qualifying days in the employee’s working week, the daily rate of £12.57.

10. The background facts to this matter are that Mr Adams previously worked for Aber Roof Truss Ltd from 24.06.02-14.09.02 and from 05.01.06-05.07.06, during which time the time said that he had a history of absenteeism.  The company re-employed Mr Adams on 12.03.07.  The Appellant company says that when he was taken back by the firm it was on the condition that there was no repeat of his perpetual absenteeism.

11. Mr Adams had two further periods of illness caused by injuries sustained whilst playing football, for which SSP was paid by the company.  He was however warned that the company would not pay any further SSP for what they regarded as self-inflicted football injuries.

12. On 04.06.08 Mr Adams sustained a further football injury (strained knee ligaments) which he reported to his employer on Thursday 05.06.08.

13. Mr Adams saw his GP on 13.06.08 and was issued with a MED3 medical certificate on 17.06.08, advising him to refrain from work from 04.06.08-23.06.08 when he could return to light duties.  Mr Adams provided his employer with the medical certificate MED3 on 17.06.08, being his 9^th day of absence.

14. Mr Adams returned to work on 23.06.08 and gave notice of termination of his employment on 25.06.08 with effect from 01.07.08.

15. The Appellant company paid no SSP to Mr Adams in respect of his period of sickness, saying they were within their rights not to pay SSP.

16. The issue before the Tribunal therefore was whether Mr Adams was incapable of performing his duties as a fabricator with the Appellant company.  The question as to whether a person is incapable of performing their job as a result of a medical condition is one that has to be decided on the balance of probabilities, taking into account all the facts of the case including medical opinions from medical practitioners.

17. It was clear from the evidence that the Appellant company did not dispute that Mr Adams was unable to work due to illness, irrespective of whether or not the illness was caused by what they regarded as a self-inflicted injury.  The GP’s medical certificate confirmed that Mr Adams was incapable of work from 04.06.08 until 23.06.08 and therefore the condition that the employee must be unfit for work due to incapacity or illness to be entitled to SSP was satisfied.

18. The Tribunal considered all the evidence, including the Appellant company’s written representations, and concluded that Mr Adams was entitled to SSP at the rate of £75.40 for the period 05.06.08-20.06.08 and that accordingly the Appellant is liable to pay SSP to Mr Adams amounting to £135.72.

19. This contains full written findings of fact and reasons for the decision.  The Appellant has a right to apply for permission to appeal against this Decision.  The parties are referred to ‘Guidance to Accompany a Decision from the First-tier Tribunal (Tax Chamber)’ which accompanies and forms part of this Decision Notice.

MICHAEL S CONNELL

TRIBUNAL JUDGE

RELEASE DATE: