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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Hi there, I am requesting Ben Jones as he has previously helped me with the situation and it may be easier for him to answer this question, but I guess it could be answered by another Employment Lawyer.
Following a recent incident at work, I fell ill and was unable to come in to work for three days.
I have followed the company procedure as set out in the contract, and informed the contact person about my sickness well before I was due to arrive to work on each day.
The company classed those days as "unpaid leave" and deducted the money from my salary accordingly. No one has given me any notice or offered an explanation/ a choice to perhaps cover this period with holidays and I only became aware of the fact when I got my payslip.
In this company everyone gets five paid sick days per year. Please find below the excerpt from the contract:
“The company shall pay you all sums payable by way of Statutory Sick Pay (“SSP”) in accordance with the legislation in force at the time of absence. If the company pays you discretionary sick pay this shall be deemed to be inclusive of SSP. At our discretion, we will pay you your normal pay and benefits (inclusive of state sick pay SSP) while you are sick after you have successfully completed your probationary period for any period or periods of sickness or incapacity according to length of service:
Length of service/ Entitlement in Company sick days per year*:
6 months and under / Nil,
6 months – 5 years/ 5 days’ full pay.
*Our company sick year runs from 01st April to 31 March and this benefit is pro-rata in the year of eligibility and termination. The sick leave for part timers will be on pro rata basis.”
There are some further terms, relating to absences for longer than 7 days, failure to inform, etc., which I think aren’t important here, as I have followed the procedure.
I had previously taken 1 day off sick this year (it would make 4 days in total).
As far as I am aware, it’s not normal within the company to withhold sick pay, unless the limit has been reached.
Am I to understand that they have withheld the sick pay because I haven’t accrued enough sick days as the year has just started? Can they do that? I was off sick on those particular days because that was then that I was not well enough to work, and I may not get sick again for the rest of the year. Anyway, I would have thought that it would only be fair if I was not paid the sick pay once I had used my allowance?
Similarly, I am due to go on holiday soon. I have booked two weeks off, but if this incident with the sick pay is any indication, can they only pay part of my holiday pay as I will not have accrued enough days to cover the whole two weeks, for the same reason – the company year has only started in April?
To be absolutely honest I think that I am being further mistreated and victimised following my discrimination complaint, which is currently being informally investigated by the HR.
I would be thankful if you could explain to me as to what is my legal position in regards ***** ***** sick and holiday pay in this situation.
Many thanks

Hello again, can you please confirm you work there full time?

Customer: replied 1 year ago.
Hi, yes I am employed full time since October 2014.

Were you paid SSP for the days you were absent? Also does the sick pay policy specifically state that the benefit of company sick pay is accrued pro rata over the year?

Customer: replied 1 year ago.
No, I have not been paid SSP, but I have checked with, and it seems that I am not entitled as SSP only starts on the 4th day of sickness?
No one said anything, I just got my payslip with 'unpaid leave' deduction in it.
I have just re-read relevant parts of the contract and there is nothing that says anything similar to 'the benefit of company sick pay is accrued pro rata over the year' or something like that. I have typed in the relevant paragraphs in the initial post. In addition to that, there some bits about the company's rights to withdraw SSP or CSP in case the employee's failure to inform the dedicated contact person by 9am or to provide a doctor's certificate if absent for seven or more days (including weekends). They do say in the contract that Company Sick Pay is 'discretionary', but does that mean that they can turn it on and off whenever they like, ie to punish someone that annoys them or has complained about them?
There is no mention of any accruing in regards ***** ***** holiday either...
BTW, I asked two someone at work, who has taken two days off sick this month whether they got paid for them, and yes they said they did as they were within the allowance. I know someone else has take four sick days since 1st April, but I am still awaiting their answer.
PS. I have not queried this with my employer yet, wanted to wait till I am confident with where I stand legally on this.

Thank you. If you were only off for 3 days then indeed you would not be entitled to SSP as that starts on the 4th day of absence. So you would be relying on the company’s suck pay scheme alone to be eligible for any sick pay for these days of absence.

Looking at the relevant policy, it specifically states “At our discretion, we will pay you your normal pay and benefits (inclusive of state sick pay SSP) while you are sick”. They key word there is ‘discretion’ – it does not guarantee payment of sick pay. In effect the employer will decide whether to pay you company sick pay and they retain full discretion as to whether that will happen.

If the policy does not state that the benefit accrues throughout the year, then one can assume that it is a benefit you can rely on straight away even without having worked the time to accrue the 5 days for that year. However, the issue is still that payment of this benefit is at the employer’s discretion rather than a given when one goes off sick.

Your best argument would be that if this benefit has been paid without fail to all those who go off sick, the employer’s discretion would have effectively been removed. However, that is just an argument, nothing with concrete legal binding effect and only a tribunal can decide if this has happened.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you.
Customer: replied 1 year ago.
Oh, in regards ***** ***** holiday - they can't decide not to pay for the whole period can they?

Thanks. The holiday issue - they can only pay you on the pro rata accrual in the current holiday year in the first year of your employment. After that you are entitled t be paid in full for the holiday you have been granted, even if you have not technically accrued it yet. What they can do is deduct any overpayment if you leave early from your wages

Customer: replied 1 year ago.

You are welcome