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Ben Jones
Ben Jones, UK Lawyer
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My employment was transferred from the private sector (cygnet

Resolved Question:

My employment was transferred from the private sector (cygnet healthcare) to the nhs (cnwl) under TUPE (My contract transfer under TUPE is like for like )on the 31st march 2014, I went sick a week and a half later.
Cnwl (new employer) tell me that I have had sick pay in 2014 and have used up 92 hours sick pay earlier in 2014 with Cygnet and this will be deducted from this years sick pay entitlement under Cnwl.


Can this be correct? How does the tax year end affect this? (See below)



Some of the 92 hours referred to was given as discretionary leave by management.

Cnwl's tax year ends in July and say they have no reason to pay me in this tax year except for ssp.

Note: cygnets tax year ends in October.

I am asking this question on behalf of my wife.
Many thanks in anticipation.
Submitted: 3 years ago.
Category: 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. What is her contractual entitlement to sick pay, what does the contract say about it?

Customer: Hi Ben,
Customer: Jans original contract under cygnet states the following;
Customer: Sick pay provision
Customer: during the first six months of employment or until successful completion of your probationary period, whichever is the longer, only statutory sick pay will be paid. Thereafter, in addition to SSP, the company offers full pay up to 32 hours in any one year for six months to three years service and 56 hours full pay in any one year thereafter.
Customer: after six months continuous service, or the successful completion of your probationary period, whichever is the longer, full pay is paid in respect of a period of hospitalisation up to a maximum of 160 hours, thereafter the unit manager has discretion to grant additional sickness payments in respect of convalescence from serious illness.
Customer: this is all the contract info I can give you, I understand that Jan has had more than 56 hours but does the pay regime continue under her new employer and when does the year end now apply? Assumably July.
Customer: note Jan has been continually at the same location for some 8 years
Ben Jones :

I see the contract mentions sick pay is paid for 'one year' - is that defined anywhere? Or has previous practice defined this in any way?

Customer: I cannot see a definition anywhere in the contract and Jan has not been ill for such a period before
Ben Jones :

Ok the tax year generally does not have any relevance on this, unless it was specifically stated that this is what the employer used as a period to measure sickness absence by. Usually the year that they determine sick pay eligibility would either be a fixed period from date A to date B (e.g. 1 Jan to 31 Dec), or a rolling 12 month period so when a person is claiming sick pay they would just go back over the last 12 months from that date and see how much they have used up. The absence of a definition of what ‘a year’ means here could make it a bit more difficult to determine her rights and she would need to check how this has been applied in the past, not just to her but to others too. For example, if the policy applied over a rolling 12 month period, then she could easily have used up a chunk of her sick pay at some point over the last year and this can now be offset against any other sick pay she is due at this stage. Also it is worth mentioning that the sick pay she has already used up will carry over to her new employer - it does not reset if there is a TUPE transfer – the contract and everything that has happened so far moves to the new employer – warts and all, so they can offset sick pay already used up from the previous employer as long as it falls within the relevant period for which it is determined.

Customer: Many thanks Ba
Customer: Many thanks Ben, think I understand well enough.
Customer: Regards Mick
Ben Jones :

You are most welcome

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