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Sickness absence and strike action
[ch 8: page 280]Workers 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 somehow actively participating in the strike:
Mr Smith was off sick for the whole period of a strike. Every week, he would go to work to hand in his doctor’s certificate and would stop to chat to the pickets on the gate. The EAT had to determine whether he was taking part in the strike. On the facts, they held that merely talking to pickets did 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 that 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).
A worker who is already participating in industrial action and then falls ill while on strike will usually be considered to be continuing to take part in the strike and will not get sick pay.