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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47908
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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, my employer refuses to pay me Sick Pay, because he

Resolved Question:

Hello,
my employer refuses to pay me Sick Pay, because he thinks there are 'discrepancies'.
According to contract I'm entitled to 25 days of Sick Pay, except if employer believes there's been a abuse.
The day i was ill I was at work and they refused to send me home. For them I looked fit enough for work with a help of paracetamol. The same day I took half a day holiday.
Next day I felt a little bit worse, I went to a doctor and he advise me to have a rest. So I went home. I don't have a doctor's certificate, because it has been less than 7 days.
Also, I'm on Final Written Warning for high sickness, but there has never been Written Verbal Warning nor First Written Warning. They told me if I'm sick during 6 months, they would dismiss me. But if I show up at work and they see that I am sick, they will let me go home. So I did, but they refuse to pay me now.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?

Customer:

I think about 3 years

Customer:

halo

Ben Jones :

yes I am still here, need to check something

Ben Jones :

Employer's discretion in relation to employment benefits is rarely left 100% in their hands and is governed by implied contractual terms - in particular the implied trust and confidence term which, among other things, requires employers to be "even-handed" and not "irrational" in their treatment of employees. Whilst the employer may have the contractual right to exercise their discretion when deciding on whether to pay contractual sick pay to an employee, they must do so in a fair and reasonable way. It is possible to challenge that but only by raising a grievance first and then by resigning and claiming constructive dismissal. You cannot just bring in a separate claim and would be expected to resign to take it further.

Customer:

Could you please simplify the last two sentences, because I'm not native English speaking person. Thank you

Ben Jones :

ok even if the contract says that the employer ha discretion on choosing whether to pay you sick pay, they must exercise that discretion fairly and reasonably. If you think that they have not been fair when using their discretion to make a decision then this could be challenged as a breach of trust and confidence. However, whilst you can raise a grievance (formal internal complaint) to take this further, if that is rejected the only way to challenge this is to resign and make a claim in the employment tribunal

Customer:

do I have to resign in order to make the claim at the tribunal?

Ben Jones :

yes you do I am afraid, unless you are dismissed first

Ben Jones :

Can I calrify anything else for you?

Customer:

can I just ask, if I get doctor's note that I've been sick ( that one must be paid for), do they still have the right to not pay me for being sick? Because I don't really want to end this employment yet.

Ben Jones :

having a doctor's note does not guarantee you get sick pay, you will get statutory sick pay which is quite low, but you will not automatically get company sick pay and the employer still has the final decision but based on the factors I mentioned above

Customer:

thank you

Ben Jones :

you are welcome

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