Info zone – Rights to sick pay
Simone, a restaurant supervisor for PizzaFeast, is forced to take time off work after returning with pneumonia from a skiing holiday in the Alps. Having been absent for three months, during which time she submitted medical certificates, Simone has exhausted her contractual sick pay entitlement and is about to transfer to Statutory Sick Pay (SSP), at a much-reduced level of pay.
Simone informs PizzaFeast that she is fit to return to work, producing a certificate to that effect from her doctor. However, on advice from its own doctor indicating that pneumonia often lasts considerably longer than three months, the company becomes concerned that Simone's true motivation for returning to work is merely to avoid a drop in her income.
The restaurant manager declines to allow her back to work immediately, requiring first that the company's doctor be satisfied that she is fit for work.
The company's doctor refuses to certify Simone fit for work for a further two months, during which time she receives only SSP. On her return, Simone objects that she should have received full pay for the period that she was available for work but prevented from doing so by the company. The company responds that it acted on its own medical information and that Simone is entitled only to SSP.
Simone takes her case to an employment tribunal, claiming that the company has unlawfully made deductions to her wages for the final two months of her illness. *
This case study is a work of fiction and consequently the names, characters and incidents portrayed in the article are fictitious. Any resemblance to actual persons, living or dead, events or localities is entirely coincidental.
Employees may feel forced to return to work before they are fully fit to avoid any loss in income
What the expert advises
Matthew Tom is an employment law specialist at Tarlo Lyons solicitors
There is little legislation governing this subject. The Employment Rights Act 1996 entitles an employee with more than one month's service to normal weekly remuneration for as much as 26 weeks of "medical suspension".
However, "medical suspension" is closely defined, requiring that the employer's reason for suspension is to avoid breaching an Act of Parliament (or subordinate legislation), or a Code of Practice under the Health and Safety at Work Act 1974.
Simone's case would probably not qualify as "medical suspension", so she would have no statutory right to her normal pay. As her situation is not covered by legislation, the ordinary common law principles governing employment relationships will apply.
Employment contracts are referred to (by lawyers, at least) as contracts of service, as opposed to contracts for services. Under a contract for services (such as when a plumber is called to carry out repairs), payment is made for "services" - ie, actual work. Under a contract of service, though, an employer pays for "service", which simply means "willingness to work", even when the employee is prevented from doing so.
The recent case of Beveridge v KLM (UK) confirmed that an employee who is willing to work (but prevented by the employer) is entitled to be paid. The court decided that if the employer withholds wages in a situation such as Simone's, it must demonstrate that it has a contractual right to do so. In the Beveridge case, there was no written contract and the employer could not prove that it was entitled to withhold payment.
Most written contracts do not include this right. When company sick pay runs out, employees may wish to return to workin order to maintain income levels. Unless employers reserve a contractual right to take their own view, they must accept an employee's medical report, allow the employee to return to work and restore full pay, even though the employee is still clearly unfit for work.
An appropriate amendment to employment contracts (or contractual sickness procedures) is therefore highly recommended.
Contacts
Tarlo Lyons
020 7405 2000
E-mail: matthew.tom@tarlolyons.com
Employment Law and Industrial Relations Helpline
020 7396 5100
