Sickness absence and strike action
[page 102]Workers who are already off sick before the start of a strike are not viewed as taking part in it. This is because workers off sick have no obligation to supply their labour and therefore cannot be said to be withdrawing it. This would not apply where the sick employee is actively participating in the strike. Merely talking to pickets while off sick does not amount to taking part in a strike (Hindle Gears Ltd v McGinty [1984] IRLR 477).
Sometimes employers try to withhold sick pay at a time of industrial action because of doubts as to whether the sickness is genuine. An employer is not allowed simply to conclude that an absence is not genuine without proper evidence (Merseyrail Electrics 2002 v Taylor [2007] UKEAT 162/07).
Someone who falls ill while already on strike will usually be considered to be continuing to take part in the strike and will not get sick pay.