The claimant was a gully operative for the respondent.   The claimant had booked a holiday in Cyprus (which he had regularly done considering his elderly mother spent her winter in Cyprus).   He left on 13th March 2020 and had booked a return-flight for 24th March and would be returning to work on 31st March.   The Cypriot Government introduced emergency powers relating to Covid-19 and this prevented the claimant from leaving until 1st July.

In the period between March and July the claimant had two sick-notes and the sick pay was equal to his normal pay.   The respondent stopped paying the sick pay on 5th July 2020 and the claimant returned to work on 20th July after a period of self-isolation.   The respondent challenged the entitlement to sick pay and did not pay the claimant from 5th July to 13th July and then sought to claw back the sick-pay at a rate of £100 per week.

The respondent made the points that the claimant should have been aware of the impending Covid-19 pandemic when he left the Isle of Man.   However, at the point when the claimant left the Isle of Man the Manx Government had issued no warning or guidance on foreign travel.  According to the claimant, everything at the point of departure was normal and the claimant referred to the Cheltenham Festival taking place as well as the Liverpool v Atletico de Madrid match without any restrictions.

The secondary point was the nature of the sick notes which were based upon the claimant’s asthma and the fact that he should be self-isolating/shielding.  The respondent stated that they were ‘insufficient and unacceptable’ and sought to claw back the money.  The legal issue was the application of Section 21 of the Employment Act 2006 (Isle of Man) which is the equivalent of Article 45 of the Employment Rights (NI) Order 1996.   The Tribunal outlined that the claimant never refused work but was trapped in a hotel room over 2000 miles away.   It would turn on the contractual interpretation and position.  Whilst the claimant had not completely complied with the process to be followed for sick pay, it would be wrong to suggest that it had no application whatsoever.  In light of the Covid-19 pandemic and the confusion that it caused, the claimant was not a wrongdoer and it would be erroneous to allow for a deduction.  Accordingly, the claimant was awarded £5,208.54 relating to the deduction.

Practical Lessons

The Tribunal noted in the first paragraph that the decision here may have wider ramifications than just this decision.  The Tribunals across the UK will have to get to grips with the fall-out of Covid-19.   This case relates to a very particular circumstance but is demonstrable of the fact that the Tribunal is likely to apply the law favourably to employees who have been adversely affected.  It will be for the NI Tribunal to deal with these issues later down the line and this case may be of some assistance in coming to a conclusion.
https://www.judgments.im/content/ET%2020-57%20Mr%20William%20Pye%20V%20Douglas%20Borough%20Council.pdf