£90 minimum earnings and SSP

[Chris1933]

Hi everyone,
I've not been on the site for a few weeks as my house burned down and my wife was badly burned and has only just come out of hospital.

Anyway need a bit of advise as I am battling with her employer and the DWP.

In short... My wife has had epilepsy for over 20 years, a good part of the time she is stable but when it's bad, it's bad!! Weve run pubs together without too many problems and she has held down various jobs for decent periods of time without any issues.

She currently works for a large bingo company and before the fire at the end of May this year she was suspended due to having a couple of petite-mals (minor seizures that only last a few seconds) at work.

She was paid one weeks SSP and then the payments stopped, she was paid monthly and because it is a joint account with my wages going in it wasn't noticed for a couple of months.

When it was noticed she contacted her employer who stated that she was below the threshold for employer SSP. (Only just found out from HMCR website that it is £90pw average earnings).

Getting to the point, she is completly incapacitated as a result of the fire and the physio-therapist has told her it will take in excess of 18 months for her to make a full recovery - this is also suported by our Doctor.

She isn't entitled to Incapacity benifit because her NI contributions aren't enough so after a little digging I found out she is entitled to SSP if she earned more than £90pw on average over a 8 week period.

MY QUESTION

In her contract of employment she is contracted for 17 hours a week at the old minimum wage of £5.49. This makes her contracted weekly earning to be £93 per week.

HOWEVER

There were several occations where she had to miss a shift as she was "jerking" (petimals). This has brought the actual average earnings below £90pw.

DOES THE £90 PW THRESHOLD GO ON ACTUAL EARNINGS OR CONTRATED EARNINGS??????

If it goes on actual earnings will they or must they take into account the fact that the time off was due to her long standing illness???

Sorry for rambling but any thoughts


P.S (shes not entitled to any means tested benifits because I'm on a high wage)

[stardust_john]

Someone in the know will be along soon. Just a thought if your wife is so poorly with the epilepsy that it effects her working has she been assessed for disability living allowance. I thought this was not means tested though someome will correct me if I am wrong. This would at least cover her care when you are at work or not there etc... I am epileptic myself and relate to the when its bad its bad, so I wish you the best. Please contact welfare rights for advice also, they are very helpful.

[Chris1933]

Thanks for reply Stardust, she gets DLA (£144 every 4 weeks approx). She has no finacial worries as I pay the bills etc, but it makes me so angry that she would work all the hours going if she could and when she gets dismissed or suspended from work because of her epilepsy (though no company's have ever dared say it was a direct result of it) her confidence takes a big knock. (She just wants to be a bit more independant and have a bit of cash of her own)

[Chris1933]

Any Ideas Anyone?

[KJD]

I have checked on our payroll system (Sage) and it states..

"For an employee to be eligible for SSP their average weekly earnings must be above the lower earnings limit for National Insurance Contributions. The average weekly earnings are calculated from the previous 8 weeks pay."

So if your wife didn't have any deductions re lower hours within the 8 weeks prior to the date she became ill, she will qualify.

[Chris1933]

UPDATE

It looks like I've got them by the balls, Heres a copy of the letter I sent them (pretending to be my wife obviously). I ran the letter past my wife as I'm getting peeeed off now and it is a little snotty, she was happy with it though.

25 weeks I've been trying to resolve this on her behalf!!!!

As soon as it is sorted I will Name and Shame them!!!! Its a big Bingo company that is not Gala

15th November, 2008

Dear xxxxxx

I confirm receipt of you letter dated 10th November, 2008.

In response to your request to know who will be accompanying me to the meeting that was provisionally arranged to be held on Monday the 17th, I can inform you that when a meeting takes place I will be accompanied by an A.C.A.S recommended representative.

You will be pleased to hear that subject to approval by my GP and other relevant specialists I would like to return to work forthwith, obviously this needs to be discussed in more detail along with medical evidence/reviews to support this.

A full recovery is expected to take in excess of 12 to 18 months, however with some small adjustments made to my employment I feel that I would be mentally and physically able to return to work within the next few weeks. I hope this opinion is consistent with your opinion once a meeting has taken place.

However, I feel it unethical for a meeting regarding my return to work to take place prior to the issue regarding my SSP payment being resolved. You will recall, that on the 15 October 2008 my husband, on my behalf due to me being severely incapacitated wrote to you requesting documentation explaining why you hadn’t paid me any SSP. Some time later in response I received an SSP1 form with no other information or explanation of your actions as was requested in the letter. It must be noted that you were required by law to have supplied me with the SSP1 form some 24 weeks ago!

Due to the above mentioned I have prepared a formal complaint which I will be forwarding to the HMRC, however in light of recent correspondence from you I have abstained from posting it and will see no reason to if the issue is resolved in a timely manner.

The amount of SSP owed, calculated using the HMRC guidelines, is currently as of Saturday the 15th November 2008 £1753.05. (see attached sheet).

Due to the amount of time involved and with you not complying with my requests to try and resolve this I will require you to forward me payment in full within 7 days. After this time I will seek to recover the amount owed by any means available to me without further notice.

I sincerely hope this situation can be resolved within the above time scale so we can then move on and go back to having the good rapport we once had.

In order to assist you in this I have taken the liberty of analysing how your confusion occurred regarding the calculations and guidelines around SSP. When reading the comments below please refer to the attached completed HMRC calculation sheet.

You will be aware that to qualify for SSP an employee is required to earn £90 or above for the 8 weeks prior to sickness. My usual contracted weekly hours are 17 hours at £5.69 which gives me a total weekly earning of £96.73. Unfortunately because I am paid monthly the calculations aren’t quite as simple.

You are required to take the previous 2 months wages, divide by 2, multiply by 12 and then divide by 52. This then gives you the average weekly earning for that 8 week period. However you will notice that in the months April & May of this year there are actually 9 weeks not 8. This combined with a short absence due to my disability it brings my average weekly wage (but not a true indication) to £89.89. I suspect it is this calculation you or HR used, and it is the 11 pence below the required amount that they/you are disputing.

With all the numerical rounding and individual interpretations of the HMRC guidelines it is not surprising you can get confused.

However, not wishing to argue semantics but you will recall that on Friday 30th May 2008 I was asked to forfeit my shift as you witnessed me experiencing petite-mals and felt it necessary to send me home due to health and safety reasons. That Friday fell into the May wage bracket so taking into account the HRMC guidelines on AWE (average wage earnings) this would mean that I would not have worked enough hours/weeks/months prior to my sickness to use the above calculation. The HMRC guidelines are quite clear regarding situations similar to this in that it states you should calculate AWE on the employees normal contracted wage.

If you refer to the attached completed HMRC calculation sheet you will notice my AWE in the above mentioned circumstances is actually £96.72. This is £6.72 over the required amount.

I trust this clears up any confusion and you will forward remittances immediately.

It was confirmed in the letter sent from my husband (on my behalf) dated the 15th October 2008 to yourself, that it was of consequence of your direct instruction not supply xxxxx with any further “sick notes” as I would not be receiving any SSP. In light of the above if you require any further medical evidence then please take this letter as my written permission for you to contact my GP or any other medical profession you see relevant.

That said, you have never previously questioned the veracity of my disability and subsequent injuries so any delay in payment due to requiring “evidence” may be interpreted as stalling tactics, especially when taking the amount of time involved into consideration. Although as already mentioned I will be happy to substantiate this by means of allowing you to view my medical file again.

I eagerly await your response

Kind regards


xxxxxxxxx

N.B
I have included copies of all correspondence regarding this matter to assist you in resolving this in a timely manner. I will hand deliver this letter on Saturday 16th November and confirm receipt on Sunday 17th November by means of a telephone call to yourself or in your absence another senior member of staff.

[Chris1933]

Don't know if anyone is interested but i'm still getting passed from pillar to post. I've found out who the Managing Director is at this company and I've written to him asking for his help (Politely this time - respect where respects due, he is a MD)

If this fails I'll have to look at court action - may need some help on this from some of you guys though. (You still on here Mr Shed? hint hint)

Dear Mr X,

I write to ask you for your help regarding the horrendous way your company has treat my wife Danielle XXX during the course of her employment with XXX Bingo in XXX and how it has dealt with her disability.

I would like to make you aware that whilst trying to resolve this issue, Danielle was involved in a house fire and received 20% 3rd degree burns and has only recently been discharged from hospital after having 2 skin grafts. During this time I have been acting on her behalf.

I understand you will be a very busy man so I will keep this short.

I wouldn’t normally take the drastic action of personally contacting the Managing Director of such a large and prestigious company over what will be construed as a trivial issue that could be easily resolved. However after 26 weeks of getting inconsistent maladroit information regarding a simple matter, I feel it is my only option.

For instance, after being informed that Gary XXX from HR is dealing with our issue I promptly requested his email address - I was given X@X.COM not X@Y.COM. This is only a trivial oversight but is becoming somewhat typical of how our requests for information from XXX Bingo are being cast aside.

In short, during the initial interviews Danielle informed XXX Bingo of her epilepsy and described how this effects her life. In 2005 I owned a small group of public houses where I successfully employed Danielle as Manager only having to make a few minor adjustments to accommodate her condition. I assume your company took this into consideration and subsequently employed her.

During the last week of May this year Danielle’s epilepsy took a turn for the worst and after consulting with the relevant managers it was decided that her shifts would be covered by another member of staff until she was feeling better. This happened to be 2 shifts in total and she returned to work on Friday 30th May 2008, however during this shift she experience a couple of petite-mals (jerking of the body) and was asked to forfeit her shift and go home. On the 1st of June 2008 she was called into the office without warning and immediately suspended pending a medical review. She was verbally informed that this would be on full pay, however once asked to provide written confirmation this was unequivocally refused.

Danielle was paid 1 week statutory sick pay and then no further payments were received. After 25 weeks of reciprocal correspondence and the threat of legal action we received a SSP1 form from xxx Bingo some 24 weeks late and no explanation other than “you don’t earn enough” as to why the SSP hadn’t been paid. On Saturday 15th November we wrote to Julie XXX informing her of the HMRC guidelines and clearly substantiated that indeed Danielle was owed SSP and requested payment within 7 days. We received no payment or reply.

On Monday 17th November, Danielle called Julie XXX to confirm receipt of the letter and was informed that “it’s nothing to do with me now - HR are dealing with it”. Today Danielle called Julie XXX and asked her to be more specific, she was informed Gary XXX is dealing with the issue.

I am sure you will appreciate that after substantiating that Danielle is entitled to SSP I would like this matter to be addressed forthwith. Danielle is making a rapid recovery and with a few minor adjustments to her employment is looking forward to returning to work in the near future. This would be impossible if we have to initiate a claim against XXX Bingo and this is something we are trying desperately to avoid.

The above is a very abbreviated version of events, if you require more information please do not hesitate to contact me.

Thank you for your time, once again I do appreciate how busy you must be and I am sorry for having to contact you but we are in a very vulnerable position due to your company’s actions.

Regards


Chris XXX

What do you think? It's nearly midnight so there probably some spelling mistakes!

On that note, why doesn't spell checker work on the CAG email? anyone else noticed that?

[KJD]

Have you spoken to ACAS? Might be worth a try.

Or, if you don't get a response to your last letter, maybe another one 'threatening' to contact HMRC. I say threaten but you can disguise it in the hope it will get some action. We're only a small business and have, over the years, had HMRC inspections for NIC, minimum wage, SSP and full blown payroll, and they're quite frankly a real pain. So for a larger company, I'm guessing they would want to avoid any of the above like the plague.

Of course, only 'threaten' if you are prepared to go through with it. But witholding SSP would surely be frowned upon by Her Maj!

[Chris1933]

Hi KJD,

How about this for a quick responce. . . .

Dear Chris

Thanks for taking the time to write. I am very sorry to hear about all the
medical problems your wife has been having and also that you are so
disappointed with the treatment she has received from xxx.

I will pass this issue on to be investigated and aim to come back to you by
the end of this week.

xxxxx

xxxx - So much more than Bingo!

xxx xxxx
Managing Director, xxx Bingo

[enamae]

You've written employers name in. 8th paragraph.

[Chris1933]

Hi KJD

Sorry i forgot to ask....

could i be a real pain and ask you to check your sage (I use ACT! by sage for database - it's brilliant, havent got a clue how to use sage accounts though)
anyway could you have a look about Incapacity Benifit because i've heard a ruhmour that after 28 weeks you're automatically entitled it even if you haven't enought NIC or means tested.

If it's not on there i'll trawl through the HMRC website . . . easier said than done though - it gives me a headache the size of the North side of the Eiger

Thanks KJD

Chris

[Chris1933]

Originally Posted by enamae

You've written employers name in. 8th paragraph.

Thanks enamae,

that'l teach me for posting late a night

i'll tip your scales

Chris

[KJD]

Originally Posted by Chris1933

could you have a look about Incapacity Benifit because i've heard a ruhmour that after 28 weeks you're automatically entitled it even if you haven't enought NIC or means tested.

I'll have look into it tomorrow and if I can't find out, I've got a friend I can ask. Will post back when I've seen what I can find for you.

Good that you got such a quick response.. let's hope he does reply by the weekend.

Karen

[Zamzara]

There is no change to the benefit contribution rules after 28 weeks. You might be confusing it with the rule that people who become ill in youth are exempt from the contribution test.

Also, only earnings actually paid can be included by HMRC for calculating SSP.

I'm concerned that they are suspending her without pay though when she may be well enough to work with a reasonable adjustment. This is potentially grounds for a claim.

[Chris1933]

Hi Zamara,

Thank you for reply,

I got info from below website and have cut and pasted the relivant bit - Now you mention it, it quite clearly says MAY BE ENTITLED - does this change anything?

http://www.direct.gov.uk/en/DisabledPeople/FinancialSupport/IncapacityBenefit/DG_10016082

If you haven't paid enough National Insurance contributions

You may be able to claim Incapacity Benefit even if you haven't paid enough National Insurance contributions if:

• you're aged under 20 (or 25 if you were in education or training at least three months immediately before turning 20), and
• you've been sick for 28 weeks, and
• you're present and resident in Great Britain for 26 weeks in the year before you claim

If you're in the Armed Forces or you live and work within the European Economic Area (EEA), you may still be treated as being resident in the UK.


I did use actual pay when using HMRC calculator, my argument was that they divided it by 9 weeks not 8 so that brought the AWE below £90, by the way I had a very promising conversation today with HR - I've asked for written confirmation and then i'll elaborate. . . .

by the way, in my first post i stated that her time off brought the AWE below £90, i didn't know about the HMRC online SSP Calculator then, also i dug her wage slips out and clarified exactly how much she had earned. Using the HMRC calculator made her 11p short but that was because of 9 weeks in april and may not 8. The time off only made a slight difference but was still above £90 on average for the 8 weeks running up to sickness.


Sorry about style, i seem to have cocked my fonts up somehow

[Chris1933]

Sorry Zamara I'm being thick again - I can see it now,

you've got to be under 20 AND sick for 28 weeks

Doh

isn't it funny how you can read something 10 times over and not see it