Employment Tribunals Cannot Determine SMP Entitlement
In the case of Hair Division v Macmillan, the EAT has found that “Parliament cannot have intended that HMRC’s jurisdiction [where overall responsibility for the administration of SMP has been since 2005] be other than an exclusive one.”
In Hair Division, the Employment Tribunal had considered that there was nothing in the Statutory Sick Pay and Statutory Maternity Pay (Decisions) Regulations 1999 that “would oust the jurisdiction of the Tribunal to make an award under the wages provisions of the Employment Rights Act 1996”.
The Employment Appeals Tribunal disagreed, ruling that an employment tribunal can determine “an issue as to whether or not an employee did in fact receive SMP from her employer”, but the “separate issue of whether or not, under the relevant social security legislation, a woman was in fact entitled to SMP in the first place” cannot be decided in that forum.
Considering its findings in Taylor Gordon & Co Ltd v Timmons, the EAT agreed with Recorder Luba QC – that “the code for determination of disputes must apply as much to SMP as it does to SSP and it is one which excludes the jurisdiction of the Employment Tribunal”.