The claimant worked for the respondent as a Teaching Assistant.  However, she was initially engaged as a bank worker from October 2018 with a contract being given to her on 27th September 2019.   She began work in October 2019 under this new contract and on 10th October she injured her ankle at work.  She tried to continue working but had to go off in November and did not return to work until her employment was terminated in September 2020.

The claimant brought a claim in terms of the treatment suffered during her sick leave relating to her entitlement.  The offer of employment regarding the September 2019 contract made no mention of sick pay entitlement.  However, there were other documents outlining the standard terms and conditions.  It outlined that following probationary period there would be one week’s sick pay and if the injury was sustained during work, then it could be up to a maximum of three months on a discretionary basis.   The Tribunal found that these documents did apply to the contractual relationship between the claimant and respondent.  Indeed, the discretion was used by the respondent as the claimant was paid in full for November 2019.   However, it then stopped with no pay (either salary or SSP) given in December 2019.  This was on the basis that the respondent stated that the payment in November was in error and it had to be deducted from the salary she would have received in December.

To make things more complicated, the claimant issued a grievance, and this was heard on 4th February 2020 where the respondent’s witness had stated that the claimant should have been paid in full until February considering that the injury took place at work.  She continued to receive SSP until July 2020 and it had been exhausted at that point.  There was also an erroneous payment made in April 2020 where she received her whole salary rather than SSP.

In examining the whole position regarding sick pay the Tribunal held that there had been an unlawful deduction when it came to the December 2019 deduction.  She was entitled to full salary yet received nothing.  However, the claimant had actually received a later payment which meant would have covered the December deduction.   Therefore, as the claimant had received the amount, she was owed in full there was no order to be made.

Practical Lessons

This was a complicated scenario as a result of the respondent’s mismanagement of Company Sick Pay and Statutory Sick Pay.  Having a discretionary basis to award Company Sick Pay can lead to difficulties and complaints about unfair treatment.  In this situation, the respondent surprisingly rectified its error with another error.  Sometimes two wrongs do make a right.
https://www.gov.uk/employment-tribunal-decisions/ms-v-leach-v-hillcrest-childrens-services-ltd-part-of-the-outcomes-first-group-3306575-slash-2020