Establishing a contractual entitlement to sick pay

If there is no written term and the contractual entitlement to sick pay is in dispute, a tribunal can look at what happened in the past and what the parties’ understanding was to establish the contractual position. In Secession Ltd t/a Freud v Bellingham (EAT/0069/05), the employee, a financial controller, had always received full sick pay over 15 years of employment, with no indication that it was discretionary. Her employer then refused to pay her when she was signed off work for a month. The EAT found that she had a contractual entitlement to full sick pay, and that the failure to pay it was a breach of contract entitling her to resign and claim constructive dismissal.

If an employee’s doctor says they are fit to return and the employee is willing to return but the employer wants further medical checks, the employee must be paid his or her full wages while these checks are being carried out. At common law, an employee who offers their services to an employer is entitled to be paid unless the contract expressly states otherwise (Beveridge v KLM UK [2000] IRLR 765).