Background: 

The claimant was firstly employed by the respondent as a Production Operator before being promoted to the position of Technical Operator. At the time of hearing he was still in employment with the respondent. 

The claimant was disabled at all material times by reason of back problems in that he had bulging discs. The claimant was advised to shield through the pandemic due to taking immunosuppressant injections as part of his treatment. The claimant used his entitlement to Company Sick Pay when he was shielding as well as time taken off following an operation to his back.   The claimant asserted that he was unaware that the Company Sick Pay policy was being used through the shielding periods.  It was only when he received his pay slip during his time-off relating to the surgery that he noticed that was the case.  In his grievance, the claimant asserted that he was disadvantaged by not being furloughed and challenged the classification of his sick days. It should be noted at this point that the respondent did not furlough any staff during the pandemic but rather found that the requirement for work had increased during that period. The claimant also challenged the fact that he had not been paid for four bereavement days which took place when he was off recovering from the surgery. 

The grievance was initially rejected but on appeal it was partially upheld allowing for 3 days pay of the 7 days bereavement pay that he was claiming. He claimed a reasonable adjustment to the Company Sick Pay policy for the period in which he was unpaid.   

Outcome: 

The Tribunal had to decide whether the provision, criterion or practice that being the Company Sick Pay policy was operated discriminatorily against the claimant on the basis of his disability.  This was problematic as the policy allowed for 67 days of sick pay but in fact the claimant received 141 days (that being the original 67 days, 14 extra for Covid and two extra months to cover his shielding).   

Claimant’s Counsel referred to a number of cases where exceptions had been made to extend sick pay policies.  However, the Tribunal in examining those cases noted that they were designed in such a way to provide an avenue back to work rather than being a purely financial matter.  In this case, the extension of sick pay requested by the claimant was a purely financial matter rather than one which related to making it possible for the claimant to return to work.  Therefore, it was found that the way in which the sick pay policy had been extended through the pandemic was reasonable and it would not have been a reasonable adjustment to strip out the sick leave during the pandemic thus allowing it to remain intact. Accordingly, the case was dismissed.  

Practical Guidance for Employers: 

This is an interesting case relating to sick pay provision and the need to shield through the pandemic.  Whilst it was argued by the claimant’s legal representative that the Covid-19 pandemic was exceptional and should allow for exceptional circumstances the Tribunal found that an employee using their company sick pay to shield did not, in fact, amount to an exceptional case.   Bearing that in mind the Tribunal is stating that time off for shielding would come off any company sick pay entitlement and that there would not need to be adjustments to extend that for those who have disabilities so that they can take off an additional length of time beyond the normal policy. 

The full case is available here:
https://assets.publishing.service.gov.uk/media/64ef2bbe13ae15000d6e3082/Mr_Antar_Zaka_v_Weetabix_Ltd_-_3322552-2021_-_Judgment.pdf