× Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Other benefit issues  →  Thread

SSP and Agency Workers

J.Mckendrick
forum member

Welfare Benefits Team - Phoenix & Norcas

Send message

Total Posts: 279

Joined: 16 March 2012

Getting conflicting advice from every where but can some one confirm whether agency workers can claim SSP and if so what are the conditions - many thanks.

WROTricia
forum member

Advice Works, Renfrewshire

Send message

Total Posts: 102

Joined: 4 February 2016

Most agency workers are deemed “employed earners” and so can claim SSP - https://worksmart.org.uk/work-rights/atypical-workers/agency-workers/are-agency-workers-entitled-sick-pay

Mike Hughes
forum member

Senior welfare rights officer - Salford City Council Welfare Rights Service

Send message

Total Posts: 3138

Joined: 17 June 2010

This is what CPAG and DA have books for isn’t it? Do you not have access?

https://worksmart.org.uk/work-rights/atypical-workers/agency-workers/are-agency-workers-entitled-sick-pay

https://www.gov.uk/agency-workers-your-rights/your-rights-as-a-temporary-agency-worker

Oops. Cross posted the first link. Apologies for the duplication. It was hardly hard to find though so I’m intrigued as to why the OP would have any issue finding it.

WROTricia
forum member

Advice Works, Renfrewshire

Send message

Total Posts: 102

Joined: 4 February 2016

I wonder where the conflicting advice comes from - I can’t find any.

J.Mckendrick
forum member

Welfare Benefits Team - Phoenix & Norcas

Send message

Total Posts: 279

Joined: 16 March 2012

Sorry I asked… I am currently carrying out outreach work in the middle of Norfolk with pure phone connections and limited resources. The subject can look complex as it talks about the self employed, workers and employees etc. If any of you can give me a definite explanation to the difference between a worker and employee etc you should be working in the Supreme Court!

ClairemHodgson
forum member

Solicitor, SC Law, Harrow

Send message

Total Posts: 1221

Joined: 13 April 2016

a worker can even be a partner (i.e. owner) in a law firm (there’s an ET case on that).

basically, a worker is anyone who is working

an employee is someone who is an employed person under a contract of employment.

sometimes, what looks like a self employed person may be treated for some purposes as if they were an employee (e.g. labour only subcontractors on building sites who have no control over anything at all except their tax/ni)

J.Mckendrick
forum member

Welfare Benefits Team - Phoenix & Norcas

Send message

Total Posts: 279

Joined: 16 March 2012

Dear Clairem thank you for your speedy and ‘polite’ reply. My confusion lay in the following extracts in that ACAS made reference to agency workers being deemed as workers and the GOV.UK website intimated that only employees were entitled to SSP….

ACAS

In most cases zero-hours contracts give worker status.

GOV.Uk

3. Eligibility
To qualify for Statutory Sick Pay (SSP) you must:
be classed as an employee and have done some work for your employer

This is where the ‘conflicting advice’ came from. Incidentally if the two previous persons who posted from Renfrewshire and Salford do ever get confused regards worker and employee status then they might learn a lot from one of my cases I took to the EAT…

Hyman -v- Chief Constable of South Wales EAT/892/02, [2003] EAT 892

Elliot Kent
forum member

Shelter

Send message

Total Posts: 3117

Joined: 14 July 2014

I suspect that the conflicting information you have received John is due to the fact that “employee” has different meanings depending on whether you are talking about employment rights generally or if you are only talking about national insurance and SSP schemes.

In cases on unfair dismissal etc, there has been a lot made over whether an agency worker is or can become an “employee” as defined under s230 Employment Rights Act 1996. If they are not, then they can be barred from bringing certain actions in the Employment Tribunal. That is why ACAS says “Agency workers are not employees”

But those high minded arguments don’t need to bother us in the trenches of social security law because the definition of employee is specifically extended by regulations for the purposes of the national insurance scheme. The regulations which apply in our field pretty decisively class agency workers as “employees” for SSP purposes.

Now back to revising for my employment law exams…

 

WROTricia
forum member

Advice Works, Renfrewshire

Send message

Total Posts: 102

Joined: 4 February 2016

My post merely pointed out i hadn’t come across any conflicting definitions of employee in relation to SSP, inviting others to correct me if i was wrong.

shawn mach
Administrator

rightsnet.org.uk

Send message

Total Posts: 3773

Joined: 14 April 2010

Mike Hughes - 26 April 2016 11:39 AM

This is what CPAG and DA have books for isn’t it?

We love the CPAG and DRUK handbooks, but hopefully the forum also provides a valuable place for people to be able to find answers ... as well as to canvass opinion and otherwise share what they’re up to ….

I hope that one of the reasons that people use the rightsnet forums is because of the broad range of people that post here and the broad range of questions that people are able to help to get help with … whether they’re just starting out in advice or are dealing with some something really technical and everything inbetween …

It would be a sad day if only those without access to a book posted here

.... keep on posting!!

Cheers - Shawn

 

Mike Hughes
forum member

Senior welfare rights officer - Salford City Council Welfare Rights Service

Send message

Total Posts: 3138

Joined: 17 June 2010

Mike Hughes - 26 April 2016 11:39 AM

This is what CPAG and DA have books for isn’t it? Do you not have access?

Bit harsh to take only the first half of the quote without the second half Shawn :)

Are we training to be a politician :)

 

 

shawn mach
Administrator

rightsnet.org.uk

Send message

Total Posts: 3773

Joined: 14 April 2010

Apologies Mike ... no harshness intended ...

... lies, damned lies and partial quotes!!

ClairemHodgson
forum member

Solicitor, SC Law, Harrow

Send message

Total Posts: 1221

Joined: 13 April 2016

ClairemHodgson - 26 April 2016 12:32 PM

a worker can even be a partner (i.e. owner) in a law firm (there’s an ET case on that).

basically, a worker is anyone who is working

an employee is someone who is an employed person under a contract of employment.

sometimes, what looks like a self employed person may be treated for some purposes as if they were an employee (e.g. labour only subcontractors on building sites who have no control over anything at all except their tax/ni)

so in my last example, if the last such person (labour only subby) has a work accident and the head contractor/some other contractor is at fault, then the at fault “employer” can be sued and it will run as if an EL claim.  However, my first example, the partner in the law firm, is a worker but is also self employed, probably doesn’t pay class 1 stamp, if s/he is injured at work it would get complicated as s/he has control etc…. not impossible but not easy.  and in Employment law their respective positions are different again….

in other cases, as Elliott has pointed out, you probably need to go back to the primary and secondary legislation regarding the particular issue you are concerned with, in this case, SSP

and in terms of agency workers, there is no blanket position.  Some agency workers have proper contracts with that agency and would be able to get SSP.  others don’t and aren’t.  you cannot generalise.

it is, in other words, a minefield and you need to look at the facts and docuemnts relating to the individual case to be able to have a hope of arriving at the answer.

ClairemHodgson
forum member

Solicitor, SC Law, Harrow

Send message

Total Posts: 1221

Joined: 13 April 2016

ClairemHodgson - 27 April 2016 12:17 PM
ClairemHodgson - 26 April 2016 12:32 PM

a worker can even be a partner (i.e. owner) in a law firm (there’s an ET case on that).

basically, a worker is anyone who is working

an employee is someone who is an employed person under a contract of employment.

sometimes, what looks like a self employed person may be treated for some purposes as if they were an employee (e.g. labour only subcontractors on building sites who have no control over anything at all except their tax/ni)

so in my last example, if the last such person (labour only subby) has a work accident and the head contractor/some other contractor is at fault, then the at fault “employer” can be sued and it will run as if an EL claim.  However, my first example, the partner in the law firm, is a worker but is also self employed, probably doesn’t pay class 1 stamp, if s/he is injured at work it would get complicated as s/he has control etc…. not impossible but not easy.  and in Employment law their respective positions are different again….

in other cases, as Elliott has pointed out, you probably need to go back to the primary and secondary legislation regarding the particular issue you are concerned with, in this case, SSP

and in terms of agency workers, there is no blanket position.  Some agency workers have proper contracts with that agency and would be able to get SSP.  others don’t and aren’t.  you cannot generalise.

it is, in other words, a minefield and you need to look at the facts and docuemnts relating to the individual case to be able to have a hope of arriving at the answer.

and to add, i am not an employment lawyer, the above is what i have learnt from my usual work/reading case law/like that.

1964
forum member

Deputy Manager, Reading Community Welfare Rights Unit

Send message

Total Posts: 1711

Joined: 16 June 2010

As Claire said. Indeed, I’ve found that the majority of agency workers who use our service aren’t entitled to SSP.