Is an employee who is repeatedly off sick with football injuries entitled to SSP?Thursday, October 28th, 2010
In a decision given on 29 September 2010 in the case Aber Roof Truss Ltd v Revenue & Customs, the First Tier Tax Tribunal ruled that an employee with a long history of absences caused by football injuries is nevertheless entitled to SSP.
In June 2008, Mr. Adams sustained a football injury, a strained knee ligament, and was absent from work for over two weeks. This was the latest in a long history of sickness absences, mainly caused by football injuries. He had previously been warned by his employer that no more SSP would be paid for absences due to football injuries. He was absent for two weeks and the employer refused to pay SSP on the grounds that his incapacity was self-inflicted. He appealed against the employer’s decision.
The Tribunal considered whether Mr. Adams met all of the conditions for SSP, namely that he was unfit for work due to incapacity or illness, that his employment was liable for NICs, and his average earnings exceeded the NICs lower earnings limit. The employer did not dispute that he was unable to work because of illness, only that they viewed the illness as self-inflicted.
As all of the statutory conditions were met, Mr. Adams was entitled to SSP and the employer was liable to make the payment.
Despite this decision, employers should not hold back from refusing to pay SSP if there are significant doubts over the employee’s entitlement. The worst that can happen is that, following an appeal by the employee against the refusal to pay, an HMRC officer decides that it should be paid, or not, as the case may be. This case is unusual in that the employer continued to refuse to pay, but it is clear that football injuries, however frequently incurred, cannot be viewed as “self-inflicted”. There is no statutory basis for excluding “self-inflicted” injuries.