Background:

The claimant commenced employment with the respondent as a senior business analyst in April 2022.  His continuous service within the civil service runs from November 2015. His contract outlined occupational sick pay which related to length of service.  Due to starting in 2015 with the civil service he was entitled to 5 months full pay and 5 months half pay.

In October 2022 the claimant was arrested following the death of his baby, injuries to his wife and mother. He was arrested and charged with murder. Two days after the charge he was transferred to a medium secure hospital facility under the Mental Health Act. The claimant would not have been allowed to leave the Centre even if his health improved without a court determining bail. At the time the claimant was on annual leave and his detention remained when this ended in November 2022. The claimant remained in the Centre at the time of hearing.

The respondent wrote to the claimant’s representative stating that his pay would be stopped from 9th November (when he was due to return to work) due to his detention. The respondent received letters in November 2022 and January 2023 outlining that the claimant was off sick because of severe mental illness. These were regarded by the Tribunal as a doctor’s certificate within the sick pay provision of the respondent. The claimant’s representatives requested that his pay be reinstated with the respondent disagreeing stating that he was not at work due to his detention on criminal charges.

Outcome:

The Tribunal outlined two questions in determining whether it was an unlawful deduction from wages.  They are:

• Do the contractual terms permit the deductions made; and if not;
• Does the ‘ready, willing and able to work’ doctrine support the deduction?

The contractual terms relating to the sick pay policy state that there must be a sickness and there must be an absence.  The only other condition to receive it was the need for a self-certificate or a doctor’s certificate. There is no express provision stating that the sole reason must be sickness. Based upon the medical evidence the Tribunal found that the claimant would have been entitled to occupational sick pay due to his illness at the time. As a matter of contract, the Tribunal held that the claimant was entitled to his sick pay. The doctrine relating to ‘ready, willing and able to work’ did not apply when the individual was sick as from the evidence. The sickness was an unavoidable impediment in that regard. Accordingly, an award was made for £31,642.67.

Practical Guidance for Employers:

Many will look at this decision and be disappointed with the decision reached by the Tribunal. The focus though should be on how the Tribunal got to that decision within the confines of the legal framework. The focus was on the contractual entitlement of the individual and it was, in essence, the guiding light in making the decision. Considering that it was a simple case of whether the employee was sick (with the necessary evidence) and that there was an absence – this led to the contractual entitlement.