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Establishing a contractual entitlement to sick pay
[ch 8: pages 295-298]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 for more information on how tribunals interpret contract terms, in particular page 86: Custom and practice. 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 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” (i.e. “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 a medical professional such as the worker’s own GP 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 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 as evidence that someone is unfit for 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 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).
The use of covert surveillance is a growing feature of disputes over sick leave and sick pay. The footage usually aims to prove that the illness or injury is not genuine.
A dismissal can be fair even though surveillance evidence is used, but employers who rely on this type of footage risk making stereotypical and discriminatory assumptions about illness and disability by, for example, assuming someone cannot have a serious impairment just because they are captured on film carrying out a normal day-to-day activity such as shopping. It is up to the tribunal to decide how much weight to give this kind of footage (Pendragon Motor Co v Ridge EAT/962/00). Here is an example:
Mr McCann worked part-time as a college lecturer in motor engineering and part-time at a garage he owned. He was signed off sick from the college with stress and hypertension. Private investigators hired by the college watched his home and garage daily over one week and produced a DVD showing him working at the garage. He was dismissed for gross misconduct and brought a tribunal claim. The EAT ruled that the secret use of private investigators in this case was proportionate, and not a breach of his human right to privacy. The dismissal was fair.
McCann v Clydebank College [2010] UKEATS/0061/09
An employee caught on video surveillance engaged in activities such as walking freely or carrying shopping, while on the same day telling their occupational health adviser they could not do these same activities, or only with difficulty, was fairly dismissed for gross misconduct (dishonesty) in the case of Metroline West Limited v Ajaj [2016] UKEAT/0185/15/RN.
An employer should ask a health professional for their expert view of surveillance evidence before relying on it. As with any other evidence, the employee must be given a proper opportunity to view the evidence and put their side of the story. There is more general information about the use of covert surveillance and monitoring at work in Chapter 4, page 143.
Doing paid work for another employer during the working hours for which sick pay is being paid without the employer’s permission is likely to be gross misconduct justifying summary dismissal. See further, Chapter 10: Dismissal.