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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Our son has worked reputable global software company

Resolved Question:

Our son has worked for a reputable global software company for 13 years, having been promoted twice in that time.
Over the last year, he has developed a serious bowell disorder, for which he is being treated and other stress related ailments, for which we have now persuaded him to seek proper medical help, as these have become so debilitating that he is now seriously ill with depression.
Over the last few months our son has struggled to work continually as he has not wanted to let his work colleagues down, but has taken around 8 individual days off when he was unable to go in. He has now been to the doctor who signed him off work for a month two weeks ago. However, today, he had a phone call from his office to say that as he had had so much time off this year, his pay was being reduced to the statutory minimum of £85 per week. No one has explained anything about the system employed (the Bradford score system), nor how it works, nor attempted to understand his illness. He has been pressured into agreeing to take his sick time off as holiday rather than sick leave, but this has now caused him even more stress, which will no doubt make his recovery more difficult.
None of this appears to us to be appropriate or potentially legal behaviour by any company, and we would like your advice on what if anything can be done about it.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. What does his contract say about his entitlement to sick pay?

Customer: replied 2 years ago.

His contract refers to the company handbook, which says that an employee can only have 125 Bradford points. It is not clear what this is, but he has never previously had need to look at it. Because his colitis has got worse, he has become very stressed, now depression has set in. He has had a number of other illnesses, all of which I think are related to the stress. Having looked up the Bradford system on the internet, it is clear that a number of small sick leave days has contributed to him having a very high score this year. He had had 8 days in total, in 3 instances, before his latest longer term sick leave. They rang him to tell him (while off sick) that his score was now 450 - well over the allowance of 125, and therefore they are reducing his pay. We now know that this is in his contract, but they gave no warning of this, nor any explanation prior to this that the odd days off this year had used up his allowance.

We rang the company and explained how sick he is, and they have now re-instated his pay for the month of May, but they wish to keep it under review, and may not extend it further,

We feel that he should have had much more warning than this, and that any reputable company should not simply apply the Bradford system to pay without good reason.

Expert:  Ben Jones replied 2 years ago.
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.
As an additional point, if the employee is considered disabled in law (they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities) the employer’s actions could amount to disability discrimination.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Customer: replied 2 years ago.

I am not entirely happy with this answer. My issue really is about the way in which the company is applying their sick pay scheme, and the fact that after 13 years of next to no sickness, our son was stopped pay when he had only had 8 days off work. This is a misapplication of the Bradford scheme surely, as it is designed to flag up persistent offenders, not genuinely sick people. I also feel that they should have given more warning of potential loss of pay, rather than just ringing him to tell him his pay was being stopped.

If you are saying they have the right to do this, then so be it, but surely it is poor practice?

Expert:  Ben Jones replied 2 years ago.
Whilst I understand why you may be unhappy with the situation, it is important to appreciate that poor practice does not equal unlawful conduct – the two are rather different. But as mentioned he should have been given some notice, in usual circumstances about a month is considered reasonable, but it does not mean that the employer cannot actually stop his sick pay even if he has had no absences in the past 13 years. So if their policy states that they are able to stop his pay if he has reached a certain level of absences now (this is regardless of what his record in the past years has been) then they can do so. It is just that if they had the discretion of doing so then they should have given him the reasonable notice period as mentioned. If this is not about discretion but a specific policy they have in place and which they are following then there is no need for notice as the notice would be implied in their policy itself where the rules are clearly defined.
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