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Agency workers on short-term contracts to get SSP

 Agency workers on short-term contracts to get SSP

Agency workers with contracts lasting three months or less are to gain entitlement to Statutory Sick Pay under the Fixed-Term Employees (Prevention Of Less Favourable Treatment) Amendment Regulations 2008, due to come into force in October 2008.

For the purposes of SSP, agency workers are deemed to be employees as the entitlement to SSP only applies to employees. One amendment implemented by the Fixed-Term Employees (Prevention Of Less Favourable Treatment) Regulations 2002 (FTE Regs) was to repeal the exclusion in the Social Security and Benefits Act under which those with contracts of service for less than three months were disentitled from receiving SSP.  But In HMRC v Thorn Baker [2007] EWCA Civ 626, the Court of Appeal held that the protection provided by the FTE Regs actually excludes agency workers on fixed term contracts by virtue of Regulation 19. The Court concluded that agency workers on contracts of three months or less continue to be excluded from the right to SSP. But this was an anomaly, since all agency workers are deemed to be employees for the purposes of SSP, and therefore those on contracts in excess of three months’ duration do have a right to receive it.

In October 2007, HMRC announced that it was not the Government’s original intention to exclude agency workers on fixed term contracts of a duration of three months or less. The problem had arisen through poor drafting of the FTE Regs. The 2008 regulations amend the FTE Regs to give agency workers with such short-term contracts an entitlement to SSP and will come into force on 27 October 2008, so as to co-ordinate timing with other changes to SSP.

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