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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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I had an accident on the 29 August 2015. I had a hospital stay

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I had an accident on the 29 August 2015. I had a hospital stay of 6 weeks with 2 operations resulting in a total reconstruction of the left knee. I was non-weight bearing until beginning of Dec. On the 19 October my GP signed me off well enough to do 2 hours a day of computer work as I work as an attendance officer at a academy. The academy provided me with a school laptop. I am producing a weekly spread sheet with the data required by senior management. At no stage did they tell me that I should not do the work.
On the 23 Dec. I had a telephone interview with Occupational Health and they stated that I could continue to do 2 hours a day from home with a proposed review in Feb.. As I did not hear from the OH I wrote to them at the end of Feb.and they replied that they were not given the go ahead. I finally got another telephone assessment in which the doctor stated that I was able to work in the office but unable to walk round the school.
I am now receiving statutory sickpay since January. Is this correct as I work for them 10 hours a week and secondly I am not sick I am disabled.
Can you please give me advice, I have got Unison Union involved, but I am not sure as there is a communication problem. The Unison had agreed to work on my behalf.
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. What does your contract say about sick pay entitlement?
Customer: replied 1 year ago.
6 month full pay after that half pay and statutory sick pay
Expert:  Ben Jones replied 1 year ago.
So I presume for Sept, and part of Oct you received full sick pay? Then you started working 2h a week and did you continue receiving sick pay then in addition to the hours you worked?
Customer: replied 1 year ago.
Yes, I continued getting sick pay but no pay for the 2 hours a day.
Expert:  Ben Jones replied 1 year ago.
So you did not get your contractual entitlement to 6 months full pay because you were paid full pay for 4 months and after that they stopped it?
Customer: replied 1 year ago.
They said that as my last working day was 23 July, after that we had 6 weeks holiday, therefore the sick leave starts from July..
Expert:  Ben Jones replied 1 year ago.
Ok well the leave may have started on 23 July but it should not cover 6 calendar months, rather it should be 6 months of absence. So you need to check how long you have actually been off for on sick leave and ensure that you get your entitlement to 6 months full pay based on that. After that, it states that you get half pay – have you actually received half ay or did they go directly to SSP? In terms of the two hours you worked for a while, if they knew you did these but did not challenge you to stop or state you were not getting paid then they should really be paying you for them. They could have continued to pay sick pay around those but deducted the difference for the 2 hours. The fact that you are disabled does not mean they have to continue paying you full sick pay. If you are off sick then you are subject to the sickness procedure and that also includes entitlement to sick pay. This is regardless of the reasons for absence. The employer should not include the absence when they determine things like bonuses, pay rise, performance, etc but in terms of sick pay they can apply the usual sickness procedure and it does mean that sick pay can eventually run out. 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. This is your basic legal position. I have more detailed advice for you in terms of the options you have to take the matter further, 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 I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Expert:  Ben Jones replied 1 year ago.
Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. The question will not close and I can continue with my advice as discussed. Thank you
Expert:  Ben Jones replied 1 year ago.
Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.
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Expert:  Ben Jones replied 1 year ago.
Thank you. There are a few of things you can do here:1. Initially the best thing would be to pursue this via the internal grievance procedure 2. If you have not been paid the sick pay due under contract you may consider a claim for unlawful deduction of wages in the employment tribunal. However, there is a time limit of 3 months from the date you were last due to receive this so if you are out of time then you can make the claim in the small claims court where the limit is a much longer 6 years.3. If you believe that as a result of all of this you cannot continue working there, you have the option of resigning and claiming constructive dismissal and at the same time can claim disability discrimination. A useful thing to know is that a new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal.If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement. The conciliation procedure and the form to fill in can be found here:https://ec.acas.org.uk/Submission/SingleClaimantPageIn terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.