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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47397
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi, I have been on sick leave from the 16th December due to

Resolved Question:

Hi, I have been on sick leave from the 16th December due to a knee replacement. I was only informed yesterday that my sick leave pay finished on the 26th February! So this months pay will be short of around 10 days, although I will receive SSP. My query is, that my employer never informed me of this date prior, so that I could make financial arrangements for the end of the month. I am a single parent, so now will not be able to pay my bills at the end of the month. I have never received any communication whilst I have been off, informing me of the date my sick pay would end. This will cause me a real financial problem. Is there anything I can do?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

Is the sick pay entitlement defined in your contract or a workplace policy or is it discretionary?

Customer:

It states in the handbook it is discretionary, but I am entitled to 13 weeks. My query really is that they didn't inform me that the SSp started on the 26th February.

Ben Jones :

Yes I understand, but it would be important to now whether there is a specific defined period to which you would be entitled to full sick pay before it ends and you go on to SSP. You see, if you knew of this policy in advance then you cannot argue that you ere not informed because the policy would have specifically said you get X weeks of full pay and then you go on to SSP, so there is no need for the employer to inform you of when the SSP ends - you would have already been advised of that through the policy

Customer:

it stataes in the handbook "The table below shows the maximum period of full pay (less normal deductions) to which you are entitled during any rolling 12 month period. I have never been informed when this 12 month rolling period started, I assumed it was January to December, as like our annual leave.

Ben Jones :

OK, well in some circumstances employees can be entitled to full company sick pay for a set period, after which their entitlement will either reduce or expire altogether. Such reductions could either be clearly stated in a contract or workplace policy, or simply be left at the employer’s discretion.


 


In situations where an employee has been in receipt of discretionary sick pay and the employer wishes to terminate such payments, it may be advisable to give at least a month's notice to the employee. Alternatively, the employer should consider reducing their pay gradually so that the employee does not simply go from full pay to reduced pay or no pay in a short period of time.


 


Similarly, if medical evidence shows that the employee may be able to return to work in the near future and they have only just lost their sick pay entitlement, it may be appropriate to continue paying the employee for the remainder of their absence. If there is no definitive return date, the employee has already received sick pay for some time and their entitlement has expired, the employer may be justified in terminating discretionary sick pay, subject to giving the employee some notice.


 


Finally, employers rarely retain full discretion in relation to discretionary sick pay and it is governed by the implied contractual term of mutual trust and confidence. This term generally requires employers to act fairly and reasonably when dealing with their employees. If an employer does not act in an even handed manner, it could breach the implied trust and confidence and give the employee the opportunity to raise a grievance at first. If the matter remains unresolved, they could even consider resigning and claiming constructive dismissal, subject to having at least 2 years' continuous service with the company.

Customer:

So, basically I could raise a grievance against them? I am due back to work on Tuesday next week. So in this case the employers haven't acted fairly and reasonable, so could be in breach? I am understanding this correct?

Ben Jones :

Yes you can raise a grievance if you wanted to. The only issue with whether they have acted correctly or not is if it can be shown that you knew of the specific policy in place and that it clearly defined your entitlement to sick pay and when it could run from/to. If it did not and there was a clear ambiguity over it, then you would have expected some notice for the reduction in sick pay

Customer:

I have a copy of the handbook and all that it states is what I told you. I have had no correspondence to state when my 12 month rolling period starts and doesn't explain this in the handbook. so my query was that I expected some notice for the reduction on pay, which wasn't given to me, until 3 weeks after it happened.

Ben Jones :

yes in that case you do have an argument that insufficient (in fact none) notice was given to you and can pursue this as explained abive

Customer:

ok, that's brilliant, I will contact union representative to get them to repsresent me

Ben Jones :

great, all the best with this

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