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Establishing a contractual entitlement to sick pay
[ch 7: pages 209-210]If there is no written employment contract and the contractual right to sick pay is disputed, a tribunal must work out the relevant contract term by examining all the circumstances, including the parties’ past conduct and any documents and other evidence, such as letters or emails or discussions. See Chapter 3 for more information on how tribunals interpret contract terms. Here is an example in the context of sick pay:
Ms Bellingham, a financial controller, had no written contract but she had always received full pay sick pay during sickness absence, for 15 years of employment, with no indication that it was discretionary or capped in any way. Her employer then refused to pay more than SSP when she was signed off work for a month. The EAT ruled that the fact that she had always received full pay sick pay was evidence of an implied term obliging the employer to pay sick pay at this rate. Failure to pay was a fundamental breach of contract which entitled her to resign and claim constructive dismissal.
Secession Ltd t/a Freud v Bellingham EAT/0069/05
Can an employer make sick pay conditional on being satisfied that sickness is “genuine”?
Yes, provided this is clearly stated in the written contract terms. Occupational (as opposed to statutory) sick pay can be conditional on management being satisfied that the absence is “genuine”. However the contract term must be clear and the employer must assess the genuineness of the absence in good faith and not irrationally, remembering the duty of mutual trust and confidence. The employer is not allowed to decide that an absence is not genuine without proper evidence. For example:
Ian Guthrie was off sick after a work accident. There was a contractual sick pay policy that said sickness absence would be paid if genuine. The employer withheld sick pay because the company doctor disagreed with his GP as to Guthrie’s fitness to return. However, as the tribunal pointed out, there is a big difference between genuine medical disagreement as to whether someone is fit for work (which should not impact on their sick pay entitlement) and doubts as to the genuineness of an absence, based on evidence of dishonesty or an intention to mislead.
Guthrie v Scottish Courage [2004] AER 15
www.employmentappeals.gov.uk/Public/Upload/UKEAT078803522004.doc
The case of Merseyrail Electrics 2002 v Taylor [2007] UKEAT/162/07, is another good example. In this case, the sickness absence rules in place allowed the employer to deny payment if it had “any doubt that the absence was due to reasons other than health”. The employee was off work with a stress-related condition that occurred shortly after a dispute over working hours. Given the coincidence of timing, the employer withheld sick pay. The employee self-certified for a week and then provided GP certificates recording her condition for the rest of her absence. The EAT said that although the employer might have had legitimate doubts at first while the employee was self-certifying, those doubts should have been resolved by the GP certificates. GP certificates should be accepted at face value, unless there is some clear contradictory evidence.
Where there is good reason to suspect that sickness absence is not genuine, the employer can look beyond the GP certificate (Fit Note). Misuse of a medical certificate is a disciplinary offence.
An employer is not obliged to consider an employee’s financial position when deciding whether to pay discretionary sick pay:
Mr King, a fire service employee, took long-term sick leave due to depression. His wife was also off sick, so that their family income was reduced. Mr King believed his employer should have exercised discretion to extend his period of full pay because his illness was work-related and his financial situation was poor. The EAT held that there is no such requirement.
West Yorkshire Fire and Civil Defence Authority v King [2004] UKEAT/0960/03/2906