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Establishing a contractual entitlement to sick pay
[ch 8: pages 266-267]If there is no written employment contract and the contractual right to sick pay is disputed, a tribunal must work out what contractual right the employee has to sick pay. To do this, the tribunal should examine all the circumstances, including the parties’ past conduct, to see whether a worker has a reasonable expectation, based on past practice, that sick pay would be paid as long as absence is certificated, as well as any documents and other evidence, such as letters, 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 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 the statutory entitlement to 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 always 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” , (i.e. “malingering”), and an employer who disagrees with a medical assessment that someone is unfit for work. The latter should not impact on a worker’s entitlement to sick pay, as the following case shows:
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 4 weeks during which he got company sick pay. Towards the end of the 4 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 GP 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
www.employmentappeals.gov.uk/Public/Upload/UKEAT078803522004.doc
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 v Taylor [2007] UKEAT/162/07
These cases show that GP Fit Notes should be accepted by an employer at face value. The only exception is where 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 would be 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).
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 that 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