SPM10240 – Statutory Sick Pay (SSP) - Who is covered by the SSP Scheme

Short contract employees (contract of service)

From 1 October 2002

With effect from 1 October 2002 the provisions of the Employment Act 2002 and The Fixed-termEmployees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002 No.2034) apply to short contract employees.

Short contract employees qualify for SSP from the commencement of the contract under which they are working.

Before 1 October 2002

To qualify for SSP an employee had to either:

work under a contract lasting 91 days or more ( paragraph 2 of Schedule 11 to SSCBA1992/SSCB(NI)A 1992), or

work under a series of contracts which:

• are not separated by a period of more than eight weeks, and
• when added together totalled 91 days or more.

Effect of Employment Rights Legislation

A short contract employee with a contract of service may benefit from section 86(1)(a) of theEmployment Rights Act 1996/article 118(1) (a) of the Employment Rights (Northern Ireland)Order 1996. A person who is employed on a series of contracts with the same employer and,

• the contracts are linked by periods of not more than eight weeks, and
• the period in employment exceeds 13 weeks

is treated as being in continuous employment and their contract should be regarded as being for an indefinite period, incapable of being terminated without the employer giving seven days notice.

This means that if they fall sick within eight weeks of a period of work:

• they are treated as if they were employed under that contract on the first day of incapacity
• their contract does not terminate immediately upon their non-attendance at work, and
• they are entitled to SSP in the same way as any other employee with an indefinite contract of employment.

This means that their entitlement to SSP continues:

• until the end of the PIW
• their contract is terminated, or
• they exhaust their entitlement.

If an employee's contract of employment is terminated solely to avoid SSP they continue to be entitled to SSP until their entitlement would otherwise have ended.

This was confirmed in the Court of Appeal in the case of Sally Brown v Chief Adjudication Officer.