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Tax tribunal comments on disputes over SSP payments
Monday, April 18th, 2011
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The First-tier Tax Tribunal comments on the quality of doctors’ comments on sick notes and the use of the Tribunal to resolve employee/employer issues.
In a decision given on 9 March 2011 in the case Janicki v Revenue & Customs, the First-tier Tax Tribunal ruled that medical reports issued by Medical Services were more persuasive than sick notes issued by doctors in the UK and Poland. As a result, Mr Janicki’s claim for unpaid SSP was rejected.
The story behind this case is not the principal issue. Mr. Janicki’s employer initially paid SSP to him but later discontinued the payments when his incapacity for work began to be in doubt. Mr Janicki also had other issues with his employer. He provided sick notes from doctors in the UK and Poland. On receiving an appeal from Mr Janicki, HMRC asked Medical Services to investigate the incapacity. The report stated that it was unlikely that Mr Janicki had been unfit for his work during the period in question. A second opinion was later sought but that too indicated that Mr Janicki was capable of doing his job at the time of his absence. The Tribunal ruled that he was not entitled to SSP.
The Tribunal’s side comments are, however, of greater interest.
With regard to sick notes, those issued by doctors in Poland gave a number of different diagnoses. Those issued by doctors in the UK were either not legible or described how Mr Janicki felt rather than what he was suffering from. As a result, the Tribunal stated: “We consider it desirable that UK sick notes to be used as the basis for claims to SSP should specifically refer to incapacity, instead of “absence from work”. Since the events considered by the Tribunal, “sick notes” have been replaced by “fit notes” (Med3 Statements) and they specifically ask for a description of the employee’s “condition”. The “fit note” is designed on the basis that, based on the doctor’s comments, it is the employer who decides on incapacity, not the doctor.
The Tribunal also commented on the fact that, in this type of case, they are being asked to rule on what is, in reality, an issued between an employee and the employer, not between the employee and HMRC. The Tribunal commented:
“We question whether this is the appropriate forum for resolution of disputes between employee and employer, particularly where (as here) there is a background of wider dispute between the parties as to employment-related matters. We consider that it would be far better to deal with this form of dispute as to eligibility to SSP by way of a less formal dispute resolution procedure, which might reduce the expense to HMRC and to the taxpayer of resolving a matter of concern to the immediate parties rather than to the wider public.”
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