Employer has docked pay when contract doesn't specify sick entitlement

danmanvan

Recently I had to take time off work sick - I was signed off for 2 weeks.

I was paid in full for the first week, but midway through the 2nd week I received a letter from my company advising that they would be paying SSP for week 2.

When I got my payslip, I had had my wages reduced accordingly but SSP added.

Today - having been put on garden leave since (as I also resigned at the end of the 2nd week, to escape the company as I was off for work-related stress) - I received a copy of my contract following my request.

In my contract it mentions the company sick policy but nowhere does it actually say that I am only entitled to 5 days sick entitlement. They appear to have totally forgotten to specify what my entitlement is. The only clauses in place relate to paternity leave, compassionate leave and what I'm expected to do if I AM sick (e.g. notify the company), but nowhere have they specified my entitlement to sick leave. Legally, they haven't specified that I am NOT entitled to company sick leave either (which they must do if I am not).

As a result, I'm now questioning whether in the absence of anything in my contract, they can deduct anything at all?

I know it doesn't sound like it's worth fighting over, but I've been deducted just under £1000 and it's an awful lot of money to just throw away.

I'm planning to visit CAB again this afternoon now that I have a copy of my contract, but where do you think I stand?

Sambucus_Nigra

Without a company sick pay policy, then doesn't SSP automatically kick in?

danmanvan

There is a company sick pay policy - but they haven't specified in the schedule how many days I am entitled to before SSP takes effect. There is a schedule, but they've missed that bit off (presumably by mistake).

They paid me full pay for 5 days and then SSP thereafter, but wrote to me 1 day before the end of the 2nd week to advise me that the company policy was 5 days sick entitlement before SSP, by which point I had only got 1 day left before returning to work.

Evilm

They haven't "docked pay". You haven't worked those hours and, in the absence of any other agreement, you are only entitled to SSP (after three days of sickness).

If they had taken away money from you for hours you had worked then that would be "docked pay".

Uncertain

Sadly there is no legal entitlement to company sick pay over and above SSP. Any that is offered is a contractual matter. It is also becoming increasingly common for contractual sick pay to be "discretionary" which basically means they can pay it or not as they see fit.

However a contract doesn't have to be written down to be valid so it is just possible you MAY be able to argue that sick pay was due. To have any chance of this you would either need some evidence that it was promised or that other members of staff on a similar pay grade and length of service always received it.

To be honest pursuing this beyond a first letter is likely to be stressful so you need to consider carefully if it is in your overall best interest.

You are presumably being paid if full for your garden leave?

It is worth checking if you have any legal cover as part of your house insurance. If there is some argument to be made that sick pay was due it is possible that one solicitor's letter will get a result as the company may also feel it is not worth the hassle of arguing.

Sambucus_Nigra

danmanvan wrote: »

There is a company sick pay policy - but they haven't specified in the schedule how many days I am entitled to before SSP takes effect.

Exactly; hence there not being an actual sick pay policy [written down in your contract], as it is not specified. Thus, SSP kicks in.

They have given you 5 days pay and 5 days SSP; and they are saying that the policy says 5 days [even though you have nothing in writing] so they could well have taken your pay for that fortnight down to paying you SSP for 7 days [the first 3 being not paid at all] if they really wanted to as per SSP.

danmanvan

Thanks for your responses - but just to be clear: there IS a company sick policy. They pay people X days on full pay and then SSP thereafter.

In my contract, however, it doesn't specify what X actually is. It does say 'you will get full pay for a certain period of time as per Schedule 1', but schedule 1 is missing.

Nowhere does it actually say that you get SSP.

They have written to me midway through my sickness to advise me of terms and conditions which weren't in my contract - that's my point.

They WERE paying me full pay when I was off sick, but they decided to then only pay SSP when my contract doesn't specify that that is what they will do.

Uncertain

danmanvan wrote: »

Thanks for your responses - but just to be clear: there IS a company sick policy. They pay people X days on full pay and then SSP thereafter.

In my contract, however, it doesn't specify what X actually is. It does say 'you will get full pay for a certain period of time as per Schedule 1', but schedule 1 is missing.

Nowhere does it actually say that you get SSP.

They have written to me midway through my sickness to advise me of terms and conditions which weren't in my contract - that's my point.

They WERE paying me full pay when I was off sick, but they decided to then only pay SSP when my contract doesn't specify that that is what they will do.

Yes, I understand that.

Your problem is to show that X is a bigger number than 5. To do this you either need a copy of Schedule 1 (worded in your favour) or clear evidence that company routinely paid for longer to other staff with comparable jobs and length of service.

Sambucus_Nigra

danmanvan wrote: »

Thanks for your responses - but just to be clear: there IS a company sick policy. They pay people X days on full pay and then SSP thereafter.

In my contract, however, it doesn't specify what X actually is. It does say 'you will get full pay for a certain period of time as per Schedule 1', but schedule 1 is missing.

Nowhere does it actually say that you get SSP.

They have written to me midway through my sickness to advise me of terms and conditions which weren't in my contract - that's my point.

They WERE paying me full pay when I was off sick, but they decided to then only pay SSP when my contract doesn't specify that that is what they will do.

Phew.

If your contract doesn't give a number, then they are free to make that number 1,2,3 or 100. Or zero. And they don't have to say that SSP applies, as it automatically applies. They wrote to you midway so that you would know that the terms and conditions have been met and that SSP now applies.

As Uncertain says - proving that X is greater than 5 is your issue.

danmanvan

Thanks - I do get it.

But Direct.gov.uk says that an employer needs to specify that there is no company sick policy if SSP is to apply by default.

"If your company doesn't offer a scheme, the written statement should say so."

The contract does not say that SSP applies by default.

I do get that the issue is that I need to prove that X is greater than 5, but why is the onus on me to prove this? Surely the onus should be on them to prove that X IS 5? They've stated that X is 5, but only after I'd been off work for much longer than 5 days.

They could have written to me in my first week or absence but didn't.

agrinnall

Are you sure it's not documented elsewhere (company handbook for instance)? As it is, if you ask for Schedule 1 I'd imagine they will now just create a document that is in their favour so you may be on to a loser unless you can prove otherwise. Has nobody else in the company ever been sick for more than 5 days that you could use as supporting evidence?