Does this 52-week rolling sick policy seem oddly applied?

Naf

Undervalued said:

Naf said:

So the company policy says:

<company> offers all full time staff 5 separate occurrences of paid sick leave (up to a maximum of 20 days) paid (i.e., company) sick leave within any 52 week period of time. This is known as a rolling or cumulative sick leave system. The sick leave year starts on the first day an employee is off sick and keeps moving subject to further sickness absence. It means that if at any point in time, a member of staff is off sick for more than 5 occurrences (or 20 days) within any 52 week time period, the additional days will be paid at the SSP rate, if qualifying.
For the first 5 occurrences or 20 days of sick leave, SSP will be topped up to full basic pay by <company>. Any further period of sickness will be covered by Statutory Sick Pay only, providing that the absence qualifies for SSP.

OK, so firstly is it just me or is that contradictory already? The start says that you get 5 company paid periods in any 52 weeks; but then the explanation section doesn't distinguish and just says that any sickness more than five occurrences will be SSP only. That second explanation leads to the situation where you actually don't get those 5 occurrences of paid sick leave within the rolling 52 weeks - because they're counting even SSP-only sick periods towards the rolling total.

Which is what's just happened to my wife. She has had:

• 4 working days isolating due to someone else at her work having Covid in August - all appears to be company sick.
  
• 8 working days of them dragging their heels to do a risk assessment, and initially not allowing her to work with a fractured ankle in September. Only some of this was company sick, mostly not.
• 8 working days isolating due to actually having Covid in January - all of which was SSP only.
• 2 working days sickness in March.

Prior to that 10 days isolating due to having Covid in February 2021 - more than 52 weeks ago.

Our expectations were that she would have company sick days again for those two days in March, because those 10 days last Feb would have "dropped off" the total now - a simple count shows March as only the third period of company sick in those 52 weeks. They are saying that the periods of SSP still count towards the total, so she still has no fully paid sick days left to use.

I'm finding it hard to believe that's the intended meaning of the policy. It means that if she now has just two more days sickness before mid-September, then she will go a full year without getting a single company sick day, because she will have had 20 days of SSP-only in the previous 52 weeks.

Seems clearly unfair and misleading to me; but is it actually anything we have any recourse against? Worth pushing back and potentially involving her union?

The vast majority of company sick pay schemes these days are "discretionary". Whilst hard and fast contractual entitlements do still exist they often only apply to long standing employees.

So the first question is....

Are you (or your wife) sure that you are looking (and have quoted) all the relevant documentation relating to this "policy". Does her contract say something to the effect that the company's policies will "normally" be applied or applied subject to the management's "discretion"?

Also, how long has she been employed by this company? If less than two years I would think long and hard before rocking the boat.

Normally (sorry I'm doing it now!) any medical absence enforced by the company, when she was fit to work, should be paid in full and not count as sick leave.

Morally this is what I would have expected, but I've not been able to find anything to back me up on it from a real world standpoint. She wanted to be in work with the fracture, and indeed did go back when they did their assessment, so I very much feel that one should be squarely on them. Does this include Covid isolation where she was a close contact of a colleague but not actually ill herself?

She's been there over 3 years, so no worries about that. Granted the policy does state:

Management have the discretion to increase or reduce sickness payments beyond these limits

but they aren't claiming that this has anything to do with it. Nowhere does it say anything about "normally", "discretionary" or anything like that about the policy generally. Literally says "<company" offers all; full time staff.." as above. They're just counting the SSP periods, which creates this situation where you can end up not entitled to occupational sick no matter how long it's been since they last paid you any, just because of a quirk of how your particular sicknesses have been spread out. I just can't believe that this is normal practise, or the way the policy was intended to apply. Surely the intended meaning is just that if you've had 5 occupational sick periods/20 days within the past 52 weeks then any more would be paid as SSP, and the counting of SSP sickness should only feed into the absence monitoring (which they've already said isn't an issue here due to so much being Covid).

Undervalued

Naf said:

Management have the discretion to increase or reduce sickness payments beyond these limits

That, I'm afraid is almost certainly their get out, apart maybe from the enforced medical absence. "Management have discretion....". Even if it was "intended" or normal in the past, the economic belt tightening may have led them to use their "discretion" to restrict company sick pay. Not that they have to have a specific reason......

Legally an employer is allowed a really quite wide "discretion" unless it is so far off as to be "perverse".

I've been retired for a few years so I am not up to date with the rules (guidelines??) about Covid isolation I'm afraid.

Naf

Undervalued said:

Naf said:

Management have the discretion to increase or reduce sickness payments beyond these limits

That, I'm afraid is almost certainly their get out, apart maybe from the enforced medical absence. "Management have discretion....". Even if it was "intended" or normal in the past, the economic belt tightening may have led them to use their "discretion" to restrict company sick pay. Not that they have to have a specific reason......

Legally an employer is allowed a really quite wide "discretion" unless it is so far off as to be "perverse".

I've been retired for a few years so I am not up to date with the rules (guidelines??) about Covid isolation I'm afraid.

https://www.gov.uk/medical-suspensions-from-work

Well this was suddenly very easy to find when I searched "enforced medical absence". Cant believe I couldn't find it before. So I guess we'll be pushing to get those 8 days paid in full, which will then bring the other sickness down below 20 days and she should get that *as well*.

Well that's even better than I had hoped; thanks for your help!

Undervalued

Naf said:

Undervalued said:

Naf said:

Management have the discretion to increase or reduce sickness payments beyond these limits

That, I'm afraid is almost certainly their get out, apart maybe from the enforced medical absence. "Management have discretion....". Even if it was "intended" or normal in the past, the economic belt tightening may have led them to use their "discretion" to restrict company sick pay. Not that they have to have a specific reason......

Legally an employer is allowed a really quite wide "discretion" unless it is so far off as to be "perverse".

I've been retired for a few years so I am not up to date with the rules (guidelines??) about Covid isolation I'm afraid.

https://www.gov.uk/medical-suspensions-from-work

Well this was suddenly very easy to find when I searched "enforced medical absence". Cant believe I couldn't find it before. So I guess we'll be pushing to get those 8 days paid in full, which will then bring the other sickness down below 20 days and she should get that *as well*.

Well that's even better than I had hoped; thanks for your help!

As I said, I would think they will struggle to avoid paying for the medical suspension (providing that is what it was).

The other may be more tricky due to the wide discretion that is allowed.

One word of caution. These .gov websites (including ACAS) are not definitive or legally binding statements of the law. Sometimes that have a habit of saying "must" when something is only actually a guideline or statement of good practice, rather than a hard and fast legal requirement.

Naf

Undervalued said:

Naf said:

Undervalued said:

Naf said:

Management have the discretion to increase or reduce sickness payments beyond these limits

That, I'm afraid is almost certainly their get out, apart maybe from the enforced medical absence. "Management have discretion....". Even if it was "intended" or normal in the past, the economic belt tightening may have led them to use their "discretion" to restrict company sick pay. Not that they have to have a specific reason......

Legally an employer is allowed a really quite wide "discretion" unless it is so far off as to be "perverse".

I've been retired for a few years so I am not up to date with the rules (guidelines??) about Covid isolation I'm afraid.

https://www.gov.uk/medical-suspensions-from-work

Well this was suddenly very easy to find when I searched "enforced medical absence". Cant believe I couldn't find it before. So I guess we'll be pushing to get those 8 days paid in full, which will then bring the other sickness down below 20 days and she should get that *as well*.

Well that's even better than I had hoped; thanks for your help!

As I said, I would think they will struggle to avoid paying for the medical suspension (providing that is what it was).

The other may be more tricky due to the wide discretion that is allowed.

One word of caution. These .gov websites (including ACAS) are not definitive or legally binding statements of the law. Sometimes that have a habit of saying "must" when something is only actually a guideline or statement of good practice, rather than a hard and fast legal requirement.

My union assures me that its true under breach of contract. She was well enough to work, with no doctor's note to say not to, and they prevented her from doing so. They recommend that we'd be able to go through small claims if it came to it. Seems like instead of just looking for around £90 back for those two days, we're now arguing for more like eight day's worth.

Oh, and it's here too

https://www.legislation.gov.uk/ukpga/1996/18/part/VII/crossheading/suspension-on-medical-grounds

[Deleted User]

^ Not new, been in existence for the best part of 20 years. Not exclusively but tends to be applied to maternity issues.
Had she approached her union earlier I'm sure they would have signposted.

Jude57

Naf said:

Undervalued said:

Naf said:

Undervalued said:

Naf said:

Management have the discretion to increase or reduce sickness payments beyond these limits

That, I'm afraid is almost certainly their get out, apart maybe from the enforced medical absence. "Management have discretion....". Even if it was "intended" or normal in the past, the economic belt tightening may have led them to use their "discretion" to restrict company sick pay. Not that they have to have a specific reason......

Legally an employer is allowed a really quite wide "discretion" unless it is so far off as to be "perverse".

I've been retired for a few years so I am not up to date with the rules (guidelines??) about Covid isolation I'm afraid.

https://www.gov.uk/medical-suspensions-from-work

Well this was suddenly very easy to find when I searched "enforced medical absence". Cant believe I couldn't find it before. So I guess we'll be pushing to get those 8 days paid in full, which will then bring the other sickness down below 20 days and she should get that *as well*.

Well that's even better than I had hoped; thanks for your help!

As I said, I would think they will struggle to avoid paying for the medical suspension (providing that is what it was).

The other may be more tricky due to the wide discretion that is allowed.

One word of caution. These .gov websites (including ACAS) are not definitive or legally binding statements of the law. Sometimes that have a habit of saying "must" when something is only actually a guideline or statement of good practice, rather than a hard and fast legal requirement.

My union assures me that its true under breach of contract. She was well enough to work, with no doctor's note to say not to, and they prevented her from doing so. They recommend that we'd be able to go through small claims if it came to it. Seems like instead of just looking for around £90 back for those two days, we're now arguing for more like eight day's worth.

Oh, and it's here too

https://www.legislation.gov.uk/ukpga/1996/18/part/VII/crossheading/suspension-on-medical-grounds

Your union may well interpret it that way, and in your sector of work may well be correct. However, unless your wife works for the same employer, in the same sector, what your Union rep thinks isn't necessarily to be relied upon. Especially if your wife isn't a Union member, as the Union's advice is based on what applies in that workplace and sector. Is your wife a Union member?