No SSP for short-term agency staff

The Court of Appeal has ruled that agency workers on contracts of three months or less are not entitled to statutory sick pay (SSP), even though they contribute to the National Insurance fund from which SSP is paid.

Until 2002, payment of SSP was limited to employees (including agency workers) on contracts of three months or more. The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations (FTER) then removed that restriction, extended the payment to all employees regardless of contract length.

HMRC, which is responsible for deciding whether employers must pay SSP, claimed that this extension of SSP rights applies to agency workers as well as those directly employed. But the Court of Appeal disagreed — because agency workers are specifically excluded from the FTER’s coverage, it said, the removal of the restriction does not apply to them.

HMRC v Thorn Baker Ltd and others [2007] EWCA Civ 626