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Establishing a contractual entitlement to sick pay
[ch 8: pages 283-285]If there is no written employment contract and the contractual right to sick pay is disputed, a tribunal must work out the employee’s contractual entitlement by examining all the circumstances, including the parties’ past conduct and any documents and other evidence, such as letters, emails or discussions. See Chapter 3, page 75. Here is an interesting example:
Ms Bellingham, a financial controller, had no written contract, but she always received full pay sick pay during sickness absence over 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 [2006] All ER (D) 62
Occupational sick pay that exceeds SSP can be conditional on management being satisfied that the absence is “genuine”, as long as the written contract terms make this clear. However, the employer must assess the genuineness of the absence in good faith and not irrationally, and must comply with the implied duty of mutual trust and confidence. An employer must not simply decide that an absence is not “genuine” without proper evidence.
There is a difference between an employer who decides that a worker’s sickness is not “genuine” (so-called “malingering”), and an employer who disagrees with a medical assessment that someone is unfit for work. In general, a disagreement between medical professionals or between a medical practitioner and an employer, as to whether someone is fit for work should not impact on their entitlement to sick pay. An employer who withholds sick pay because they disagree with the assessment of the worker’s own GP as to the worker’s fitness to work risks a claim in the employment tribunal (see DWP Fit Note Guidance). Here is a useful case:
Mr Guthrie was off sick after fracturing his cheekbone in a work accident. There was a contractual sick pay policy that said sickness absence would be paid if “genuine”. Guthrie was initially signed off work by his GP for four weeks during which he got company sick pay. Towards the end of the four weeks, the employer’s occupational health adviser advised that Guthrie was fit to return to light duties. His GP disagreed and signed him off work for a further period. Guthrie followed his GP’s advice and did not return to work until advised.
The employer withheld sick pay for this extra period of absence. The employer argued that the extra sickness was not “genuine”, despite it being certificated by a GP, because the company doctor had disagreed with the GP’s assessment. This was unlawful, ruled the EAT. The fact that the company doctor disagreed did not mean that the absence was not “genuine”, in the sense of “malingering” or deliberately misleading an employer or GP. There is a big difference between a medical disagreement as to someone’s work fitness (which should not impact on sick pay entitlement) and an employer’s 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
Here is another good example:
Sickness absence rules allowed the employer, Merseyrail Electrics, 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, Merseyrail 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 Merseyrail might have had legitimate doubts about the genuineness of the absence at first while the employee was self-certifying, those doubts should have been resolved by the GP certificates.
Merseyrail Electrics 2002 Limited v Taylor [2007] UKEAT/162/07
These cases show that GP Fit Notes should be accepted by an employer at face value as evidence that someone is unfit for their work unless there is clear evidence that the employee is being dishonest (“malingering”) and has misled their GP over their state of health in order to procure a Fit Note.
Misuse of a Fit Note is a disciplinary offence. Pretending to your employer that you are too sick to attend work when you know this is not true is dishonesty and a fundamental breach of the employment contract (Metroline West Limited v Ajaj [2016] UKEAT/0295/15/RN).
Sometimes employers use covert surveillance evidence from private investigators to discipline or dismiss workers for sick pay abuse (for example, video evidence of someone doing tasks such as shopping when they are off work with a back injury). In general, an employer should not rely on this kind of evidence without first showing the video to a health professional and asking for their expert view. Otherwise, the employer will be making assumptions about the employee’s medical condition without the benefit of medical expertise and risks carrying out an unfair or discriminatory dismissal. In addition, as with any other evidence, the employee must be given a proper opportunity to view the surveillance evidence, with their rep if they have one, and put their side of the story.
Employers should act consistently. Singling out an employee off sick with harsh methods such as surveillance while being more lenient towards other employees may suggest unfairness as well as possible victimisation (see page 236).
For general information about how the law approaches covert surveillance at work see Chapter 15: Data Protection.
Doing paid work for another employer during the working hours for which sick pay is being paid without permission is likely to be gross misconduct justifying summary dismissal. See Chapter 10.