employer reclaiming overpayment whilst on sick

borderbri

Hi
I would like a little advice on where i stand in this unusual situation.

Straight to the point.
I was given one days notice to go in and have a vasectomy whilst working night shift.
I finished at midnight by my own choice after informing my manager on the night before the op. After the op unfortunately i contracted an infection and therefore ended up altogether taking 7 working days off. In the period that i was off on the sick i landed another job and therefore i handed in my notice. Iam salaried so when my pay went in i noticed that it was the normal amount and therefore assumed that i had been paid full sick pay. I now find that my ex employer is now trying to recover 700 pounds plus that i had been paid whilst on the sick. My contract of employment states that full sick pay will be paid at the MANAGEMENTS discretion and i honestly thought that when i had been paid it that it had been granted. Also out of the 700 pounds i had been paid some of it was because at the time i gave notice i had taken holidays more than i had accrued. I havent got a problem with paying back that part as thats fully understandable but the pay whilst being sick i have.
Another employee previously had been granted full sick pay whilst having an operation on his knee,whilst another employee took time off after having an hernia op and got full pay but had to work the hours back that he had taken off whilst sick!
I feel that the term managements discretion means more like whos face fits and with me handing in my notice it didn't go down well.

Any advice on if i have to pay back the sick pay side of the 700 pounds would be greatly appreciated.
Thank you
Bri

mariefab

Sorry but 'at the Managements discrection' means exactly that. I suppose there's not much incentive for them to pay full sick pay to a leaving employee.

On the other hand, unless there's a specific clause in your contract/handbook stating that the Company will require overtaken holiday entitlement to be repaid on termination of employment, they cannot make you repay that part of the overpayment.

paulwf

borderbri wrote: »

I feel that the term managements discretion means more like whos face fits and with me handing in my notice it didn't go down well.

Sounds like that is the case. Make sure you get a pay slip to see how your final pay was calculated and work out what you have to pay back from there.

Uncertain

Although I think it is disgraceful I'm afraid your chances of getting the money are not high.

About the only chance would be if you could show that other employees have been treated differently in similar circumstances or, by custom and practice, sick pay had become universal.

Even if you only get SSP for that period you do of course still accrue paid holiday whilst off sick so make sure they have not overlooked this.

From a practical point of view, if you can find any slight argument at all, you may take the view there is little to lose by filing an ET claim for unlawful deduction of wages. The firm may take the view it is easier to pay or offer some kind of settlement than become involved in a dispute that will cost them time and money. You would first need to raise a grievance according to the firms procedure. Note you have three months less one day to file your ET claim.

Zazen999

Did you attend other interviews whilst you were off sick?

iamana1ias

Sounds like your colleagues' operations were for medical reasons while yours was optional?

Uncertain

iamana1ias wrote: »

Sounds like your colleagues' operations were for medical reasons while yours was optional?

But the infection afterwards wasn't "optional".

That is a bit like arguing that you don't get sick pay if you break a leg playing sport! You should of course sit in an armchair doing nothing and die of a heart attack the day after you retire!

iamana1ias

Uncertain wrote: »

But the infection afterwards wasn't "optional".

That is a bit like arguing that you don't get sick pay if you break a leg playing sport! You should of course sit in an armchair doing nothing and die of a heart attack the day after you retire!

In many industries you'd get SSP only for your sport scenario, or for cosmetic procedures (including teaching, NHS, council workers and civil service)

what has retirement got to do with it?!

Caffca

Uncertain wrote: »

But the infection afterwards wasn't "optional".

That is a bit like arguing that you don't get sick pay if you break a leg playing sport! You should of course sit in an armchair doing nothing and die of a heart attack the day after you retire!

But if you hadn't had the optional operation, you wouldn't have had the infection. All operations carry risk, it's not the company's fault you got an infection so why should they pay for it? (Am not saying it was your fault for getting an infection either, its just one of those things.)

If you hadn't handed your notice in maybe they would have allowed you to work back the hours like one of your colleagues did. You haven't been discriminated against. Their sick pay policy is that anything over and above SSP is at their discretion, they are allowed to do this. There is no legal entitlement to be paid for not working due to illness apart from SSP (if you qualify for it).

As regards the sporting injury, we have recently had to inform an employee who apparently is a disaster on the football field as virtually every time he plays he pulls a ligament / tendon or "does his knee in" and ends up taking time off work that we will not pay anymore sickness absence for this (we also pay at our discretion) and that he is now under a sickness review period (to ensure he doesn't claim stomach bug for a football injury.) He has a duty as an employee to be physically able to do his work (moving and lifting things) and often on the days he has come in he says "I can't do that, it hurts my leg/knee" - he knows now that if he carries on like this he will end up being taken down the capabilty policy which could ultimately end up with dismissal. Now before you go off on one about typical employers, no compassion, throwing their weight around, etc, we have not taken this decision lightly and despite informal conversations in the past 2 years, nothing has changed so why should we carry on just saying never mind, he hurt himself, lets just pay him anyway and make his colleagues work harder and harder to cover the work he is supposed to be doing. If his condition was not of his making, we would do all we could to accomodate him but even then there is a limit to what reasonable adjustments you can make - at the end of the day we are a business not a charity.

(Sorry, rant over - just a bit of a bug-bear at the minute!:o)

Uncertain

Caffca wrote: »

You haven't been discriminated against. Their sick pay policy is that anything over and above SSP is at their discretion, they are allowed to do this. There is no legal entitlement to be paid for not working due to illness apart from SSP (if you qualify for it).

I don't think you can say the OP hasn't been discriminated against, it depends on how others in the company have been treated in similar scenarios.

Obviously a firm does not have to offer anything above SSP. However, as it does, then it has to apply its policies fairly.

As I said before, in this situation the OP may as well make a claim if he can find even the faintest reason. That is not a moral assessment, just a practical / financial one!

Your employee situation is rather different. You describe a situation that has built up over a period of time and you seem to have given fair warning. Providing you treat all your staff in the same way you are on reasonably strong ground.

borderbri

Thanks everybody for the replies.

Zazen999 i never attended any interviews whilst on the sick this interview was attended a good couple of weeks before i went in for the op, i received the letter saying i had been successful whilst on the sick !!! i fail to see what this has to do with anything anyway ?

My point was that upon seeing my payslip was normal i just assumed that i had received full sick pay i think most people would ?

I do honestly believe ive been discriminated against though on a fairness point, after all the guy who had the knee op does happen to be the managers best friend from childhood !
I work a continental shift pattern and one of the reasons i took the op date was it was almost at the start of my 8 days off and i felt that providing everything went ok that i would be fit to start back after the 8 days and cause as little disruption as possible, i wasn't banking on getting an infection and having to take an extra 4 days on the sick!
Caffca remember some of us actually do try to do everything by the book and avoid any confrontation with our employers, half of the problem is because there are so many employees swinging the lead everybody seems to get tarred with the same brush!:mad: