Non-payment of wages through Company Sick Pay Policy

[mark_18]

Hi all,

 

I think this is the correct forum to post this thread...

 

To cut a long story short... I was off work with genuine sickness for the period of 27th April 09 to 1st May 09 (inclusive).

 

On the following Monday 4th May 09 fell a bank holiday.

 

We are required to work some bank holidays, but it works on a rota. I knew before I was off sick that I was not due in this bank holiday.

 

Anyhow... When I returned to work Tuesday 5th May 09, I was told by my team leader that I would not be paid company sick pay (CSP) in accordance with their sick pay policy as it was of their belief that I had taken more sick days than I were permitted to take under self-certification rules (This being 7 days including weekends). They told me that although I was not due to work, bank holiday Monday 4th May 09 was classed as a day absent from sickness, and that it was of their belief that I had taken 8 days, without a medical note.

 

I never challenged it anyway. I ended up leaving for another job a few weeks later.

 

It was when I started this new job, my current employer requested a reference from my pervious employer and one of the questions asked referred to attendance. My previous employer had stated that my absence record was "5 days (1 occasion)".

 

I wrote to my previous employer and queried this. I explained what I had been told as to why I wasn't being paid CSP.

 

My contact of employment stated that I would be entitled to 4 weeks full pay for sickness.

 

I received a reply from them this morning. They made no reference to my comments about the reason I had been told that I would not be being paid CSP.

 

Instead they told me that because they have no record of my self-certification, and it is company policy that CSP cannot be paid without the relevant documentation. They also said that CSP is at company discretion and in this occasion, the discretion was not to pay CSP.

 

Website of the UK government : Directgov states that...

 

“Your employer can choose to make an exception and pay you sick pay even if you don't qualify under the company rules. Also, some sick pay schemes say that payments are 'at the employer's discretion', which means your employer can refuse payment if they think the absence is unjustified. However, in doing so they must ensure that their decision is free from discrimination (that is, they are not favouring one category of employee over another when they are required not to).”

 

I remember giving my company self certification form to my manager in the first instance. She had recently re-arranged her in trays and when I went to put it on the top of her tray she told me "Give it to me now, otherwise it will get lost"

 

Anyhow... I replied to them this morning, inclosing form SC2 (Employee's statement of sickness) and stated that if they had lost my original self-certification form then this is a replacement.

 

I also mentioned that I have received no other reason as to why I would not be paid CSP, and that their original reason being proven unfounded, and that it could only be discrimination as I was aware of other employee's receiving CSP.

 

I followed all company policies, including informing my manager of my sickness with reasonable notice.

 

The reason why I never challenged it at first as I was unsure how I could prove that I had only taken 7 days sickness and not 8. It was only when my current employer showed me the reference that I realised.

 

I want to know where I stand, and would I have a case to take them to an Employment Tribunal?

 

Also I wanted to know if I could claim for the unpaid CSP through the County Courts, or would it have to be an Employment Tribunal? The reason why I ask is because I am a Litigation Executive for a firm of Solicitors, so I am very familiar with Court proceedings, but not an Employment Tribunal.

 

My previous employer was not a firm of Solicitors by the way.

 

So any help would be great, I would like to know where I stand.

 

I replied to them this morning with form SC2, stating that this was a replacement for the lost original, and now that they have the relevant documentation, I believe that they can now make the payment.

 

Any assistance, comments or advice would be appreciated.

 

Many thanks,

 

Mark

[elche]

Also I wanted to know if I could claim for the unpaid CSP through the County Courts, or would it have to be an Employment Tribunal? The reason why I ask is because I am a Litigation Executive for a firm of Solicitors, so I am very familiar with Court proceedings, but not an Employment Tribunal.

 

Just taking this point alone.

 

It is a straight forward breach of contract claim - and you complete your N1 and send to your local county court as you are used to.

 

Exceptionally, BOC claims that stem from a contract of employment can also, be brought in an ET, but they do not have to be brought in an ET.

 

You need to read any published rules as regards the scheme very carefully, to ascertain if you have reasonable prospects of success.

 

Notwithstanding contra proferentum, in my experience most CSP schemes are drafted very much in the employer's favour, and I would ensure you believe you can win before issuing this.

Che

Edited August 8, 2009 by elche
My spelling is terrible

[mark_18]

Thanks for the reply.

 

If this would help...

Taken from my contract of employment.

...............................................

10. Sick Pay

 

10.1 If you are absent from work due to certified sickness or injury, you will receive any Statutory Sick Pay (SSP) to which you are entitled.

 

10.2 Dependant upon your length of service and provided that you comply with the Company's Sickness Absence Proceedure you may also be entitled to receive Company Sick Pay (CSP) if you are absent from work due to certified sickness of injury for the period set out below. CSP will include any SSP/other state benefits to which you are entitled and will be paid at the sole discretion of the Company:-

 

Length of Service Company Sick Pay

Up to 6 months' service.

Up to 4 weeks full salary.

 

Between 6 months' up to 12 months'.

Up to 8 weeks full salary in any 12 month period.

Thereafter at the company's discretion.

 

12 months' service or more.

Up to 12 weeks full salary and 12 weeks half salary in any 12 month period. Thereafter at the company's discretion.

 

The Company's Sickness Absence Proceedure states:

 

Company absent benefit is payable provided that you comply with the laid down sickness / absence reporting proceedure.

 

The company requests that you notify your immidate line manager, or if that is not possible any other responsible employee, of your absence from your normal place of work or your normal duties. This is to ensure that the Campany can maintain an acceptable level of service.

 

Cases of sickness, or absence for demoestic emergencies or compassionate reasons, must be notified as soon as possible, and in any event no later than noon, on the first day of absence and confirmed in writing (preferably e-mail) to your line manager immidately upon return to work. Periods of sickness of 5 or more working days must be supported by a doctor's certificate. Anticipated absences must be agreed, as far as is possible, in advance, by your line manager.

 

...............................................

 

The rest of the Policy is not relevant to absence due to sickness, and goes on to explain about compassionate leave ect.

 

I adhered to all the requirements to comply with this policy, so therefore I believe that I should be paid sick pay in accordance with their CSP policy.

 

I think I may seek legal advice, as you say, I don't really want to issue without really knowing if I have a chance of winning.

 

I am kind of hoping that my recent letter may prompt them to make payment.

 

Mark

[mariefab]

10.2 Dependant upon your length of service and provided that you comply with the Company's Sickness Absence Proceedure you may also be entitled to receive Company Sick Pay (CSP) if you are absent from work due to certified sickness of injury for the period set out below. CSP will include any SSP/other state benefits to which you are entitled and will be paid at the sole discretion of the Company:-

[mark_18]

I understand that, but then in my original post direct.gov.uk suggests that discretion is if that my previous employer believes that my absence is unjustified, and that in deciding not to pay CPS then they need to make sure that desicion is free from discrimination.

 

So over all, there needs to be an explination for non payment - they just can't decide not to pay me it "just because".

 

Also, going back to my first post, the original reason given by my team leader was due to the length of my absence, which is proved unfounded.

 

Now I'm told that it is because they did not get a self-certification form. I know for a fact that I gave it in. In my last letter to them I also attached a new SC2 form, and requested that this is accepted in replacement for my lost one.

[mariefab]

I think that it might be best to continue to deal directly with them.

Your current actions seem to have caught them so unawares that they have changed their original reason for refusal.

They may decide to pay you simply to make the problem go away.

 

If you took them to court wouldn't you need to prove discrimination?

Can you prove that others were paid CSP in the same circumstances.

[mark_18]

I know one person was paid CSP for 1 week off for a common cold.

 

In this circumstance, there were no questions over length of absence as it was a straight forward normal week with no bank holidays.

 

I think now that my previous employer realises that they probably made a mistake over the length of absence in the first instance, but would rather continue to defend their decision with another excuse.

 

I am going to call ACAS on Monday and seek further advice. I will keep you posted on any progress / outcome.

 

Cheers

[elche]

in deciding not to pay CPS then they need to make sure that desicion is free from discrimination.

 

In what way do you believe that their failiure to pay you CSP has been bassed on a discriminatory factor?

 

I have to agree with mariefab, and it is as I thought, yet another example of a properly drafted CSP scheme (from the employer's perspective).

 

The discrim argument aside, on the basis of the wording you have posted, your employer has absolute discretion on payments of CSP, and thus I believe you would have very poor prospects of success if this matter were litigated.

 

I'd forget it and move on.

 

Che

[mark_18]

Fair do's - like you say, it'll probably be like getting blood from a stone. I will persist in the mean time, but won't litigate the matter.

 

I just feel like I have been fobbed off, because of the original reason being the length of absence, I never questioned it at the time because I didn't know how to prove otherwise, so upon seeing my reference I thought I'd raise the matter.

 

Cheers for your help anyway people.

 

Mark