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What the EAT gives with one hand, it takes away with the other!

So you are encouraged by the helpful decision in the case of O’Hanlon v HM Revenue & Customs and ready to dust down this edition of Workplace Law the next time you have an employee with lengthy absence and wonder about the length of time that you should pay sick pay. Good. But here is a more cautionary tale concerning sick pay. Ms Bellingham was an employee of Secession Limited. She fell ill, requiring her to take a period of sick leave. The employee had no written contract and nothing had been expressly agreed between her and Secession regarding her entitlement to sick pay. Having failed to be paid her normal pay whilst away from work by reason of her continuing illness, Ms Bellingham queried the issue and was told that sick pay was discretionary. In response to this, she resigned and claimed unfair constructive dismissal. In reaching its conclusion that the employee was entitled to full pay during her sickness absence, the Employment Tribunal relied upon evidence from Ms Bellingham that on previous occasions, full pay had been paid to her during periods of sickness absence, without it being suggested that her employer had exercised any discretion in making such a payment. The EAT upheld this decision and also concluded that in failing to pay such sick pay, her employer had breached her terms and conditions of employment sufficiently seriously to entitle her to resign and claim unfair constructive dismissal.

This case underlines the central importance of well-written terms and conditions of employment, that deal clearly with your employees’ entitlement to benefits such as sick pay. It is dangerous, indeed wrong, to presume that if no mention of any entitlement to sick pay is made, it will be presumed that your employees have no such entitlement. This is particularly the case, if your actions in the past point to an alternative conclusion.

For further enquiries please contact Nick Hobden (view full profile) on 01892 701326 or email nhobden@ts-p.co.uk.

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