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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46213
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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If my contract states full pay for 6 months if off sick, are

Customer Question

Hello,
If my contract states full pay for 6 months if off sick, are they allowed to suggest that if I go sick during a performance review process I will revert to SSP ?
Many Thanks
Nigel Kershaw
Submitted: 7 months ago.
Category: Employment Law
Expert:  Ben Jones replied 7 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. So they are trying to put you on SSP even if you would normally have been entitled to full pay for that period?

Customer: replied 7 months ago.
The intention to pay SSP is written into the performance review criteria that if I produce a 'fit note' whereby I am unable to attend any meetings then only SSP will be paid. I have had my contract sent to me by HR which clearly states that 6 months full pay sick benefit will be paid with no caveats .
Expert:  Ben Jones replied 7 months ago.

Whether you are on performance plan or not makes no difference legally. However, as the entitlement to sick pay is a contractual one, the employer can defined the conditions under which it is paid. So whilst they may entitle you to full sick pay for 6 months, if there is a contractual condition that if you are on a performance plan you will not get full pay, then they can enforce that. But it neds to be a contractual right, not just something they have introduced retrospectively, such as trough a performance plan criteria which does not form part of your contract. So if the criteria they rely on are not part of your contract then you can maintain that the contractual entitlement takes precedent and request that you are still paid full ay even If you are going through a performance procedure.

This is your basic legal position. I have more detailed advice for you in terms of the options you have to pursue this if they do not pay you as per contract, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46213
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and 2 other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 7 months ago.

Thank you. If they do not pay you what you are due then this potentially amounts to an unlawful deduction from wages, which is made illegal under the Employment Rights Act 1996.

In order to try and resolve this, the employer should be contacted in writing, advised that this is being treated as unlawful deduction of wages and ask them to pay back the money within 7 days. Advise them that if they fail to pay the money that is owed, legal proceedings could follow.

If the employer does not return the money as requested, the following options are available:

1. Employment Tribunal - the time limit to claim is only 3 months from the date the deductions were made. To make the claim, form ET1 needs to be completed and submitted - you can find it here: https://www.employmenttribunals.service.gov.uk/employment-tribunals

2. County Court – this is an alternative way to claim and the advantage is that the time limit is a much longer 6 years and is usually used if you are out of time to claim in the Tribunal. The claim can be made online by going to: www.moneyclaim.gov.uk.

Hopefully by warning the employer you are aware of your rights and are not going to hesitate taking further action they will be prompted to reconsider their position and work towards resolving this.

Customer: replied 7 months ago.
Thanks Ben, I have a doctors appointment this PM but was hesitant for him to put me off work.
The performance review meeting is tomorrow and I have these chest pains, and been hospitalised a couple of times which my employer is aware off, stress !!, which I know the Doctor wants to sign me off for but the threat of SSP if I did was adding to the stress.
Customer: replied 7 months ago.
Will teach me to read the small print - small writing tucked away " company sick pay will at the discretion of management ( and will not be unreasonably withheld ) when sickness is notified with the sickness policy.
Got me I guess ?
Customer: replied 7 months ago.
Ben,Are you coming back to me?
Didn't realise rating was one time event, expected to be able to rate at conclusion.
Expert:  Ben Jones replied 7 months ago.

Hi I am in tribunal today so may not be able to reply immediately but will do so asap thanks

Customer: replied 7 months ago.
OK thank you
Expert:  Ben Jones replied 7 months ago.

Whilst it does state that it is at their discretion it does also state that it should not be unreasonably withheld so if you have genuine reasons for being off and it is formally certified by a doctor then you may argue that them withholding it is unreasonable in the circumstances

Expert:  Ben Jones replied 7 months ago.

The employer does not always retain full discretion over such matters they must still act fairly and reasonably

Customer: replied 7 months ago.
Thanks Ben, guess I may have to fight for it then !
Expert:  Ben Jones replied 7 months ago.

Use the grievance route to start with that is what it is there for

Customer: replied 7 months ago.
If I resign with the company knowing my issues over the last 12 + months and my boss never once calling to see if I was OK or visiting apart from performance review meets in Lancashire, does that in any way constitute constructive dismissal ?
Expert:  Ben Jones replied 7 months ago.

How long have you worked there for?

Customer: replied 7 months ago.
In my 23rd year
Customer: replied 7 months ago.
I work in the Oil & Gas Industry quite a lot , which as I'm sure you are aware is in the toilet at present, and as part of the Tyco Group of companies we are being bought out by Johnson Controls which will finalise Sept/Oct and if you were a cynic, well .....
Expert:  Ben Jones replied 7 months ago.

Constructive dismissal is not an easy claim by any means. I. An see why you are aggrieved but whether it is serious enough for a claim is another matter. You can try and negotiate an exit settlement with them if you can but if that does not work then consider your next move carefully as constructs dismissal is a difficult thing to win

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