News
An employer unlawfully withheld sick pay from an employee who had produced medical certificates, even though the employer itself had doubts as to the validity of the illness.
(The employer in this case had not reserved the discretion to withhold sick pay, but had rather relied on a clause in the employee's contract which stated that payment of sick pay can be withheld "if there is any doubt that the absence is due to reasons other than health or personal accident".) (Decision by EAT in Merseyrail Electrics 2002 Ltd v Taylor [2007])
Implications
If an employer wants to have discretion as to whether to award sick pay, then it should ensure that this is stated clearly in its sick pay policy or employment contracts. If you do not reserve this discretion, but instead rely on wording similar to that set out above, then you will need to pay sick pay if you receive medical certificates from an employee. (Of course, if you do reserve a discretion, then you will still need to exercise the discretion in good faith and rationally.)
Details
The Claimant was employed as a penalty fares inspector on a train line. She asked her manager for assistance to get home at the end of a late shift to avoid missing the last train home. The Claimant was not offered any assistance and she subsequently left her shift on sick leave. At first the Claimant self-certified, giving the reason for her absence as 'work related stress'. Her GP later issued her with three sick notes for acute stress reaction and work related stress.
The Claimant's contract of employment contained a provision that:
"payment [of sick pay] may also be withheld if there is any doubt that the absence is due to reasons other than health or personal accident which prevents the employee from undertaking any duty for which they are competent to perform".
The Respondent relied on that clause in order to refuse to authorise contractual sick pay because it did not believe the Claimant's contention that she was stressed was genuine.
The EAT held that the Respondent had made an unlawful deduction from the Claimant's wages.
Although the Respondent had an initial doubt that the Claimant's sickness was not genuine, once the GP had certified that the Claimant was suffering from an acute stress reaction and that was the cause of her absence from work, the Respondent had no right to withhold pay. The medical certificates should have removed any doubts the Respondent had.
However, the EAT did suggest that had the Respondent carried out its own medical investigation, which put in doubt the opinion of the GP, then the power to withhold sick pay under the relevant provision would have been made out.
