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What’s the answer? Part-timers sick pay

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Chris Burgess gets legal guidance this week from Helen Badger, employment law expert, Browne Jacobson and Martin Brewer, a Partner with the employment team of Mills & Reeve on sick payments for part-time staff.



The question:
We have a number of workers whose work is not time dependent and they can come into the office when they like – yes it is true!!

So they have no guarantee of hours, they can pop in on the way back from the shops and do a few hours work and then are paid at the end of the month for the hours they work. They decide when and how many hours they want to work.

My question is around sick pay. Up to now they have not been paid any sick pay as their hours are flexible. However, I am concerned that we may be in breach of the part-time workers regulations.

If an employee rings in and says they were going to work all of next week but are now sick what is our position? We have no way of knowing if they were going to work as they dictate their own hours.

Does sick pay qualify under part-time workers regs and if so how are we supposed to calculate their entitlement? Or can we ignore sick pay altogether? Our FT employees get two weeks full pay.

We currently calculate holidays on the basis of an accrual of five minutes for every 60 minutes worked.

Any help/guidance would be greatly appreciated.

Chris Burgess

The answers:
Helen Badger, employment law expert, Browne Jacobson
Question Mark
There are two separate issues in your question. First is your concern about the potential for discriminating against these workers on the grounds of their part time status. In reply to that concern, in order for a part time worker to prove they have received less favourable treatment, they need to be able to identify a full time worker who is employed under the same type of contract.

On the basis of the information provided, it is very unlikely that there will be any full time workers employed under the same type of contract as these part time workers to whom you refer. Assuming that is the case then you will not be discriminating against these part time workers if you do not pay them contractual sick pay.

The second issue relates to these workers entitlement to Statutory Sick Pay (SSP). This is a complicated issue which it is not possible to explore here and on which detailed legal advice should be taken.

However, the SSP regulations apply only to employees who are required to work under a particular contract of service. Because of the nature of the working pattern, the workers to whom you refer are unlikely to be employees and they are not required to do any work under a contract, as this is a matter for them. As such, from the information you have provided I would suggest they would not be entitled to SSP, BUT legal advice should be sought to clarify.

Helen can be contacted at: [email protected]

Martin Brewer, is a Partner with the employment team of Mills & Reeve
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Chris, these ‘atypical’ employees certainly seem to fit the definition of ‘part time’ set out in Regulation two of the Part-time Workers Regulations. Thus they should in principle receive the same benefits, pro rata, as your full time workers.

However, I can see that working out what the pro rata entitlement is may be rather difficult. There are two issues. Statutory sick pay and company sick pay.

Statutory sick pay is dealt with under the Social Security Contributions and Benefits Act 1992. This is a detailed and complex law (and see also the Statutory Sick Pay (General) Regulations 1982) so you may need specific legal advice on the exact facts.

However, in general, we can say that SSP is payable if the employee is off work on account of sickness for more than three days (SSP not being payable for the first three days).

Crucially, the employee must have a disease or disability which renders him incapable of performing any work he can reasonably be expected to do under his contract of employment.

The employee will also have to show that the day off in question falls within a so-called ‘period of entitlement’, which, broadly speaking is, in fact, a day off work. An employee is not entitled to any SSP if their normal (average) weekly earnings are insufficient to attract NICs (currently £84) so you will need to consider this.

Crucially the day off ill must be a qualifying day for SSP purposes. A qualifying day is a day which is a normal working day (in the absence of any agreement to the contrary).

However, you would not appear to have ‘normal’ working days for these employees in which case the Regulations deem Wednesday to be the qualifying day (although again, there is provision for all seven days of the week to be deemed ‘qualifying days’ so exercise care here).

The calculation of SSP is determined by taking the weekly rate of SSP (currently £70.05) and dividing it by the number of qualifying days (see above). Incidentally the maximum amount of SSP is an amount equivalent to 28 weeks SSP (it is expressed this way because the limit is the amount not the time period-it may in fact take longer than 28 weeks to reach the 28 week equivalent amount).

Company sick pay is, thankfully simpler. The key question to determine entitlement to company sick pay is this: what is the nature of the employee’s employment. It is strongly arguable that if wages are paid for an employee’s availability to work at the behest of the employer, then any day they are not so available because of sickness is a day for which sick pay should be paid.

However, if wages are paid only when actual work is done, the sick employee remains unpaid if they do no work even if the reason is sickness (bear in mind too that if this latter analysis is correct it is arguable whether these individuals fulfil the definition of ’employee’ at all because potentially there is no mutuality of obligation.

As I said this is complex and potentially difficult. I do not think it is possible to give a more definitive answer without a great deal more information but hopefully this at least points you in the right direction.

Martin can be contacted at: [email protected]

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