First-tier Tribunal (Tax)

[2010] UKFTT 455 (TC)

TC00720

Appeal number TC/2009/16374

Statutory Sick Pay – appeal by employer against decision that it was liable to pay SSP to employee who the Appellant claimed was not unfit for work – appeal allowed

FIRST-TIER TRIBUNAL

TAX

MITRE PLASTICS 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 on 29 July 2010

The Appellant firm was not represented - the General Manager Mr Michael Breckon having written to the Tribunal Service to say that he would not be attending

Mr Stephen Duke, presenting officer, appeared on behalf of the Respondent

© CROWN COPYRIGHT 2010

DECISION

1. This is an appeal against the decision issued on 23.03.09 under s.8 of the Social Security Contributions (Transfer of Functions … ) Act 1999.  The issue is whether Mr Darren Forster, a former employee of the Appellant firm, is entitled to Statutory Sick Pay for the period from 08.09.08 to 12.09.08 and whether the Appellant is liable to pay SSP to Mr Forster.

2. Entitlement to SSP is dependent upon the employee satisfying certain conditions laid down in legislation.  S.151 of the Social Security Contributions and Benefits Act 1992 (SSCBA) specifies the conditions for entitlement.  To be entitled to SSCBA an employee must :

·       Be unfit for work due to incapacity or illness;

·       Must inform their employer they are sick;

·       Provide evidence of incapacity for work;

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

·       Have average weekly earnings of at lease the lower earnings limit for national insurance purposes

3. SSP is not payable for the first 3 qualifying days in a period of entitlement and, in this case, the first 3 qualifying days were 08, 09 and 10.09.08.  Qualifying days are usually the days the employee is contracted to work.

4. Mr Forster started employment with the Appellant on 11.04.07.  His normal working days were Monday to Friday.  He last worked before going off sick on Friday 05.09.08.  He first reported his sickness on Monday 08.09.08 and returned to work on 15.09.08.  SSP was not paid to Mr Forster for the period of his absence because the Appellant did not accept that his claimed incapacity was genuine.

5. Mr Forster’s normal pay day was weekly on a Thursday.  The Appellant provided HMRC with a breakdown of Mr Forster’s weekly wages, which confirmed Mr Forster did not receive any pay for the pay date 18.09.08.  The reason the Appellant gave for non-payment of SSP was that Mr Forster ‘informed his manager on 05.09.08 that he was going on sick having received a letter requesting him to attend a disciplinary interview’. 

6. Mr Forster was dismissed by Mitre Plastics on 26.09.08.  The reason given for dismissal was in respect of his conduct.

7. The Appellant provided a copy of Mr Forster’s statement of sickness (self-certificate) which showed ‘work-related stress (bullied)’ as brief details of his sickness.  HMRC referred the case to Medical Services in order that an independent medical opinion could be obtained and a questionnaire was issued to Mr Forster’s GP. 

8. Mr Forster’s GP provided a letter dated 05.12.08 which said that he was unable to provide any information because Mr Forster had been seen at the surgery only once since 2005, which was on 12.03.08 when he had requested a sick note for 1 week because of a laceration to his hand and because he was having headaches.  He had not consulted his GP in connection with his claimed incapacity for the week 08.09-12.09.08 and had not been prescribed medication for stress or anxiety.

9. An examining medical practitioner from Medical Services undertook an examination of Mr Forster on 15.01.09 and concluded that Mr Forster was incapable of performing his normal duties from 06.09.08 – 14.09.08.  The medical practitioner’s opinion appears to have been based on Mr Forster’s own statement regarding the state of his health - that he felt ‘depressed’ during the week in question.  The examination was also undertaken four months after the events that happened.

10. HMRC informed the Appellant on 23.03.09 that, because Mr Forster had been off sick for 5 days, they were nonetheless only liable to pay him SSP for 2 of those days as the first 3 days would be classed as ‘waiting days’.  The total amount of SSP was therefore £30.16. The Appellant was advised that 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.

11. On 10.12.09, as the Appellant had defaulted on payment, HMRC took over liability to pay Mr Forster the £30.16 SSP and the payment was duly made.

12. The Appellant appealed the decision on the basis that Mr Forster was not incapable of work and that his absence should be treated as unauthorised.  Mr Forster had not provided any medical evidence in support of his illness and had not reported his illness to his employer on his first day of absence.

13. The Appellant said that Mr Forster had threatened to absent himself if the company continued its disciplinary procedure and carried out that threat.  At the time he left his employer’s premises, he appeared to be in good health and walked out mid-shift.  The Appellant also said that, although Mr Forster alleged bullying when he walked out, he did not subsequently raise a grievance and did not follow up the allegation.  The Appellant produced a letter from Ms Julie White, team leader at Mitre Plastics, who said she was present when Mr Forster left the factory and that he had not indicated or reported any illness or reason for leaving.

14. The Tribunal considered all the available evidence and, on the balance of probabilities, concluded that Mr Forster had not been unfit for work due to incapacity or illness when he left his employer’s premises on 05.09.08 and that it was improbable that he was unfit for work during the relevant period from 08-12.09.08.  Mr Forster had not consulted his GP and was not on any kind of medication for depression or anxiety.  The medical practitioner’s opinion had been based solely on Mr Forster’s account of what had happened, which did not fully explain the circumstances in which Mr Forster left his employer’s premises mid-shift on 05.09.08.  The opinion did not take into account the views of the employer or witness evidence.

15. The Tribunal accordingly concluded that Mr Forster had not met in full the criteria for entitlement to SSP as laid down in legislation and allowed the appeal.

16. This Decision contains full findings of fact and reasons for the decision.  A party wishing to seeking appeal this decision must apply within 28 days of the date of release of 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:  26 August 2010