Terms & Conditions

[MrsGosling]

Good afternoon.

Friday afternoon and I think my brain has given up the ghost. I have tried searching for this but different posts have different conclusions.

I have a claimant who has been on SSP since October 2010. In January 2011, our claimants employed decides to pay him his holiday entitlement for the year instead of SSP as this is higher. This is paid from 23/01/11 to 13/03/11.

We had included his holiday pay as his income on the claim. The claimant has phoned in stating that this is unfair as it is holiday pay for the year.

Looking at the regs it states that warnings means any remunation or profit derived from that employement and includes…any holiday pay except any payable more than 4 weeks after termination or interruption of the employment.

Does going on SSP count as interruption of the employment? I am thinking I need to include this as his capital although that means he then would not have received any income for this period. As I said I think my brain has given up. He is now on ESA as he has received the maximum 28 weeks SSP if that makes a difference. He went onto ESA on 14/04/11

Thanks in advance for any advice.

[Kevin D]

In my view the holiday pay undoubtedly counts as earnings. Based on the info given, it seems a distinction needs to be made between the concept of “work” and “employment”. The fact that a person is unable to work is not the same as the employment ending. Payment of SSP if evidence of continuing employment (distinguished from “work”), not terminated employment.

Further, the pay is stated as being “holiday ENTITLEMENT” (my emphasis). There can only be “entitlement” if there are “employment” terms and conditions governing such payment. As such, the very act of payment is evidence that the monies are “derived from employment”.

The fact the clmt is unable to physically work is not relevant; what counts is his employment status. All of the evidence points to the clmt still being an employee (albeit unable to work) AND, in any case, the holiday pay is directly derived from employment, irrespective of whether that employment has or has not ceased.

[Author]

Posts