Entitlement to contractual sick pay above SSP, and when an employer may withhold or suspend it. Merseyrail Electrics 2002 Ltd v Taylor; Beveridge v KLM UK Ltd.
Contractual sick pay; implied terms. There is no general implied right to contractual sick pay where the contract is silent on the issue. Such a term can only be implied if the particular facts and circumstances warrant it. Contrasted with Howman v Blyth. [Summary checked against a practitioner text, not the judgment.]
Contractual sick pay; return to work; employer's obligation. An employee who had exhausted sick pay was declared fit by her GP and sought to return, but the employer refused until its own doctor examined her (six weeks later). The EAT held the employer was obliged to pay wages during this period: there was no express right in the contract to withhold payment while seeking its own medical opinion, and no sufficient legal basis for implying one. [Summary checked against a practitioner text, not the judgment.]
Contractual sick pay; misconduct and neglect; definitions. The employee injured his knee attempting to lift the rear of his car. The tribunal upheld the employee's claim: 'misconduct' needed to be something of a criminal or quasi-criminal nature, and 'neglect' did not equate to simple negligence. Merely doing something others might consider unwise or silly was not enough. [Summary checked against a practitioner text, not the judgment.]
Contractual sick pay; calculation of amount. The sick pay scheme envisaged that sick pay should be assessed according to what the employee would have expected to receive if fit and working. The EAT allowed the employee's appeal, holding sick pay should be calculated on the basis of hours actually worked (average 34 per week), not the minimum 15 hours stated in the contract. [Summary checked against a practitioner text, not the judgment.]
Contractual sick pay; enhanced pay for injury sustained in course of duty. The employee sought continued full pay for work-related stress. The tribunal dismissed the claim: stress and anxiety are not regarded as 'injuries' in personal injury cases, and the employee had not produced evidence of a recognised mental disorder. Contrast with Simpson v William Bradford Community College. [Summary checked against a practitioner text, not the judgment.]
Contractual sick pay; withholding; GP medical certificates; unlawful deduction from wages. The claimant was signed off sick from 29 January to 18 March 2009 with a GP certificate for depression. The employer did not believe he was genuinely ill, considering that he had misrepresented his state of health to his GP in order to postpone a disciplinary hearing; he had previously threatened to go off sick if he did not get his own way and had done so before. It withheld sick pay. [Summary checked against a practitioner text, not the judgment.]
Discretionary sick pay; employer's discretion constrained. The contract provided that company sick pay would only be paid at the employer's discretion. The tribunal held the contract clearly envisaged the company would exercise discretion having regard to the employee's sickness record and conduct. It was not entitled to rely on extraneous considerations such as budgetary constraints to withhold sick pay from an employee whose record was impeccable. [Summary checked against a practitioner text, not the judgment.]
Contractual sick pay; conditions of scheme; unauthorised deductions. The employer curtailed sick pay alleging breach of a term requiring the employee to remain at her home address. The tribunal upheld the claim: the employee had complied with the conditions attaching to her contractual right. Staying at her partner's home to be cared for was not a change of address; the employer was aware and had impliedly consented. [Summary checked against a practitioner text, not the judgment.]
Contractual sick pay; enhanced sick pay for industrial accidents; negligence. The employer withheld enhanced sick pay alleging the employee was to blame for a van accident. The tribunal held there was no evidence the accident was caused by the employee's serious negligence or misconduct and found entitlement to enhanced sick pay. [Summary checked against a practitioner text, not the judgment.]
Contractual sick pay; withholding; pattern of absence. The employer withheld sick pay owing to the perceived pattern of the employee's leave applications and sickness absences. The tribunal upheld the employee's claim: a reasonable employer would not normally form an opinion that a medical certificate is not genuine unless there has been a medical investigation throwing doubt on the certificate. It found it difficult to envisage circumstances in which the opinion of an employee's GP could be overridden by the opinion of a manager with no medical qualifications. [Summary checked against a practitioner text, not the judgment.]
Contractual sick pay; withholding; GP fit notes; suspicious timing; unlawful deduction. B was a bus driver for LGTS Ltd whose employment required a valid passenger carrying vehicle (PCV) licence, due for renewal on 23 April 2012. Renewal required a medical examination, but because B was suffering from anxiety the company doctor advised him to defer re-application pending a report from his GP. At a meeting with his manager B said that if the licence was not renewed by 23 April he would go on sick leave. [Summary checked against a practitioner text, not the judgment.]
Contracts; discretion; the Braganza duty. Where an employment contract confers a discretion on the employer to make a factual determination (here, whether a death at sea was suicide, which would exclude a contractual benefit), the employer must not exercise that discretion in a way that is arbitrary, capricious, or irrational. The court imports both limbs of the Wednesbury test into contract: (1) process rationality, the decision-maker must take relevant factors into account and ignore irrelevant ones; and (2) outcome rationality, the decision must not be one that no reasonable decision-maker could have reached. In an employment contract any decision-making function entrusted to the employer has to be exercised in accordance with the implied obligation of trust and confidence [32]; the discretionary bonus cases are examples of the same review [57].
“… the court will only imply a term that the decision-making process be lawful and rational in the public law sense, that the decision is made rationally (as well as in good faith) and consistently with its contractual purpose.”Lady Hale, at [30]
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Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Contracts; discretion; 'act reasonably'; scope of review. The Court of Appeal allowed the landlord's appeal and restored the FTT's decision [90]. Where a lease requires the landlord to act reasonably or to exercise a reasonable discretion, 'reasonably' means reasonably and not merely rationally, so Aviva v Williams is not authority that every such discretion attracts only a Braganza rationality review [70]-[72]. But the tribunal's task remains whether the landlord was in breach of contract: it is in breach only if its decision is one that no reasonable landlord could have reached; the tribunal does not ask what it would have decided itself [73], [77], [79]. The court declined to lay down a single answer for all contractual discretions: it depends on the precise wording of the provision [76].
“I prefer to say that in a case like this the role of the FTT is limited to deciding whether a landlord has acted in breach of contract; that a landlord will only have acted in breach of contract if the decision it has made was not one open to it in the circumstances; and that where the lease requires the landlord to act reasonably or exercise a reasonable discretion, that will only be so if the decision is one that no reasonable landlord could have reached.”Nugee LJ, at [79]
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.