Can an employer withhold contractual sick pay where they suspect that the sickness absence may not be genuine?
Questcover HR regularly get queries like the above and now there is a recent Employment Appeal Tribunal decision that gives some guidance on the matter.
Disciplinary Hearing
In the case of Mr Parbhjot Singh v Metroline West Limited, Mr Singh (S) had been invited to a disciplinary hearing and (S) alleged that his operations manager “displayed aggressive body language, by throwing his hands in the air, pointing his fingers at his ……. face and standing with his arms folded”, (S) fell ill following receipt of the disciplinary invite.
The Employer operated a full sick pay scheme with a clause highlighting that “in cases where a thorough investigation …. revealed that the absence was not genuine the company will reserve the right to stop company sick pay payments, if payments have already been made the company will reclaim these in line with contractual entitlements ...”.
Occupational Health Assessment
Although absence was certified by (S)’s GP, the Employer had an occupational health assessment carried out that did not suggest that the absence was not genuine however the Employer decided to pay statutory sick pay rather than contractual full sick pay as they felt that sickness absence was to avoid attending disciplinary hearing and thus their approach would encourage (S) to attend a disciplinary hearing.
Mr (S) took matter to Employment Tribunal (ET) on basis that the failure to pay full contractual sick pay was a breach of contract giving rise to constructive dismissal and (ET) decided that the failure to pay full sick pay for a period of some seven weeks was a breach of (S)’s contract of employment but was not fundamental and found that the operations manager was not aggressive, nor did he make aggressive gestures.
Mr (S) appealed to (EAT), who decided that the (ET) errored in the law as the procedure the Employer had in place to address non genuine absence were not applied correctly as that would normally entailed investigation of the matter to come to the conclusion that (S) was in fundamental and substantial breach of the contract going to its root and thus not bound to pay full contractual sick pay but the Employer’s failure to follow such a procedure that would have involved a disciplinary process was a fundamental breach of contract on their part.
Also, the (EAT) referred to the case of Roberts v Governing Body of Whitecross School UKEAT/0070/12/ZT in which Slade J held that a mistaken view that there was power under the terms of the contract to reduce pay did not prevent there being a fundamental breach of contract.
The moral of the story is that Employers must not proceed to unilaterally withdraw contractual rights benefitting an employee without following a fair procedure that justifies such conduct.
The article is for general information purposes only and should not be relied upon as authoritative however should you need any further assistance on the matter, please do not hesitate to call our advice-line team on 01455 852028.
