LRD guides and handbook June 2014

Law at Work 2014

Chapter 7

Can an employer make sick pay conditional on being satisfied the sickness is “genuine”?

[ch 7: pages 212-213]

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 an absence is “genuine”, but the contract term must be clear and unambiguous, and the employer must make its assessment of the genuineness of the absence in good faith and not irrationally, taking into account 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 his fitness to return. However, as the tribunal pointed out, there is a big difference between a genuine disagreement as to whether or not someone is fit for work (which should not impact on 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, sickness absence rules 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 timing of the two events, the employer withheld sick pay. The employee self-certified for a week and then provided GP certificates recording her condition covering the rest of her absence. The EAT said that, although the employer might have had doubts at first while the employee was self-certifying, those doubts should have been resolved by the GP certificates, which should have been accepted at face value, unless there was some 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 EAT/0961/0

www.bailii.org/uk/cases/UKEAT/2004/0960_03.html