Urgent Employment Lawyer Advise Needed!

[Noushki]

I require a legal advice in regards to Employment Law, especially sick leave. Let me explain the circumstances...

At the begining of this year I had fall ill with flu twice in 3 months. I have always had a very low immunity system which doctors think I have inherited from my mum. Not only I pick up infections easily, but also I had blood cancer 4 years ago. Since then it's been really difficult to maintain 2-3 months without falling sick. I try a lot of supplements, I eat very well, look after myself and I changed how I deal with stress to stay in good shape.

Last time I fell ill in April and I had been "off work" for 3 days. However due to the fact the Company was not able to provide a temporary cover for me, despite feeling really ill, I was performing my duties from home. After I returned to work I was informed that the Company will not pay for 1 of those three days off work, cause I had more than 7 acceptable days of sick leave in a year (I had 8 by then, Thank God I have not been sick since then). You can imagine my disappointment, especially after I spent days working from home, not resting in bed. I lost £150 which is a lot of money to me.

On 10th June 2011, I had a meeting with Office Manager and HR Manager during which we discussed few issues related to my absence at work caused by being sick. I was informed (which I can confirm is true) that my contract states that the Company at its discretion at any time can decide to stop paying full salary for the days of sick leave. Also, as you will see below- I copied the notes from that meeting sent to me by Office Manager. I was told that the Company suspends the payment of full salary in 2 cases:

- if an employee does not follow the procedures while off sick, or
- if an employee has been off sick for more than 7 days in a year. I had 8 so far, so they deducted 1 day of my salary.

In the below notes that I received from the Office Manager, the Company states that there is a general rule employees are paid only for 7 days of sick leave in a year which runs from January to December, but .... NO OTHER assistant in the Company has ever heard or this policy

- All employees has recently received an updated version of Employee Handbook that includes all Company's policies, but there is NO mention of 7 acceptable and paid days of sick leave per year.

- Recently two other Assistants have been off work for few weeks and none of them has been deducted money for their absence at work. They both spent some time in a hospital, but does it mean that if I have a chest infection or flu and I suffer from a high fever and pains, I am not considered seriously ill and I am expected to come to work?

All of the above makes me think that this rule has been made up and seems to apply only to my case. Is that legal? Can the Company create an unknown to all policy/rule that applies to some people, but not to others? I feel discriminated and I want to know if there is anything I can do?

I will much appreciate your kind help

Below, you will find 2 points of the notes sent to me after the meeting confirming what was said during.

1. Deduction of 1 day’s pay during the last period of sickness absence.
We discussed that in the past you have received full salary payments during periods of sickness absence and the decision was made in April to deduct your pay by one day; as you had gone beyond the number of days of sickness that the company consider acceptable (7). The additional day was treated as unpaid. We confirmed that over the past couple of years we have been taking an increasingly firm line on the number of days of paid sick leave we authorise and that you were not the first person for whom we had withdrawn salary payments for periods of sickness. We do this in 2 instances; where the employee fails to follow correct procedure for notifying of sickness absence (i.e. unauthorised absence) and where an employee goes over the number of days of sickness that XXXX consider acceptable.


2. Future actions should you fall sick
XXX confirmed that payment while off sick was at the company’s discretion. Whilst we will consider any future sickness absences individually at the time, you should assume that, unless in exceptional circumstances; you will not receive salary payments if you are off sick again during the remainder of 2011. You referred to your previous history of cancer treatment and stated that, although you had gone for a period of 6 months last year without any sickness absence, it was unrealistic not to expect you to become sick every couple of months. You said that you were due to meet your oncologist on 30th June to investigate why you still seem susceptible to illness and infection given the length of time since your chemotherapy treatments. You agreed to report back any significant findings to us after the appointment.

XXX mentioned that if you are off sick for 4 days or more, you are eligible for Statutory Sick Pay (SSP) and XXX gave you some information and website details to get further clarification on this".

[leclerc]

Re: Urgent Employment Lawyer Advise Needed!

Company sick pay rights : Directgov - Employment

The above is the direct gov website view. What does your contract state with regards to sick pay?

[Noushki]

Re: Urgent Employment Lawyer Advise Needed!

Employer's discretion

I had a look at this website and I found a note that says:
"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 appreciate they can stop paying at any time and they based it on the fact I already had 7 days off due to ilness, but how do you explain the fact there is NO mention of this 7 days rule in my cotract or Employee Handbook? And how do you justify the fact that others are getting paid even though they were off sick for few weeks and I do not get paid anymore?

[leclerc]

Re: Urgent Employment Lawyer Advise Needed!

Ask them where is the specific provision for the 7 day rule because it is not in YOUR contract and not in THEIR handbook

[Caspar]

Re: Urgent Employment Lawyer Advise Needed!

Are you in a union?

[Boxerdog8]

Re: Urgent Employment Lawyer Advise Needed!

Hi, I am sorry for you illness, I am a ex MD of Charities (UK) and a business. I need to go through your post in more detail but this sounds wrong.

If you are off for more than 5 days in a row, you need a dr's note. If you are sick you are sick they should pay you. Perhaps a letter from your gp would help. There is Company Law/Policy BUT they have to comply with UK law. Give CAB a call on their help line they should be clear on sicness policy. When you worked from home did you agree it with a manager first? My view is is an employee is sick he/she is sick and should not work.

I have not work for a few years (young son at home) so things may have change.

Best wishes,

[Noushki]

Re: Urgent Employment Lawyer Advise Needed!

I wasn't referring to 7 continues days of being ill, but 7 days per year of sick leave that are fully paid for. Anything over and you do not get paid. Contract says that the Company at its discretion can stop paying for sick leave at any time. However HR told me that according to the above rule an employee is being paid only for 7 days per year of sick leave. My problem is that they do not mention it anywhere - not in the contract and not in the employee handbook. Other employees have nwever heard about it, so it seems that they made up a rule just for me, cause they do not like the fact i get sick a lot, but they knew about my cancel history when they employed me!

I recently found out they paid fully to two other assistants who have been off work for more than 7 days. I feel discriminated, so I want to get to the bottom of it.

[leclerc]

Re: Urgent Employment Lawyer Advise Needed!

Ask for them to put it in writing stating where in your contract or where in the employer handbook this provision is

[Noushki]

Re: Urgent Employment Lawyer Advise Needed!

I did ask them and I wam waiting to hear from them. I appreciate your help Leclerc!

[teaboy2]

Re: Urgent Employment Lawyer Advise Needed!

Well Firstly i do not believe your being discriminated against, as it is up to the company whether they pay you full salary for days of sick.

However I do feel they may have acted unreasonably by not taking into account the fact that you still did your work when you were at home when off work sick. As i personally believe its unreasonable for them to deduct your pay when you still did the work that you would have done even if you had not been sick. If you have evidence of doing such work from home then you may have grounds for unlawful deduction of wages under the employment rights act. Because even though you were off work sick the fact you still did the same work you would have done if you had not been off work means you were still working, despite being at home ill and as a result the employer has not been prejudiced but has in fact benefited from the work you did at home whilst not paying you for said work, in regards to the day they deducted from your salary.

If you have evidence of the work you did then I would write a letter, and attach the evidence, to your HR explaining that:

"you feel they are acting unreasonably and that the deduction of your wages for when you were off sick is unjustifield, because even though you were at home sick, you still did the work that you would have done if you had not been sick. And as a result of you still doing the work you should then still be paid for the days you did work from home as you still put the hours in to do the work that you would have been expected to do if you had not been at home sick. Any such deduction may also be a breach of the employment rights act, as it could be deemed as unlawful deduction of wages, especially when the very policy you are basis your decision on, DOES NOT appear in my employment contract or in the company handbook.

I also note that 2 other employees off work sick were still paid full salary even though they were in hospital an not able to complete any work from home, the fact they were still paid and i was deducted a days wage in accordances to this new and previously unknown policy that does not appear on my contract or in the company handbook, is evidence of unfair treatment as you have paid one but deducted from the other. The rules most be the same for all employees and such rules or policy should been in my employment contract or in the company handbook to be legally enforcable.

Not only that, but as you still did the work that you would have been required to do if you had not been off work sick, means the company has not been prejudiced but has in fact benefited financially by deducted the 1 days pay despite the work still being done. Therefore the company has made an unjust financial gain and has pejudiced myself in the process by unlawfully deducting my wages despite the work still being completed by myself."

Although it is a long shot, i do believe sending a letter to the HR personnel that dealt with your case similar to what i stated above. May well make them reconsider, especially if you mention the fact the policy they rely on does not exist and can only be legally enforceable if it were in your contract or in the company handbook.

Now others may disagree with my post here and not expect me to advise in such a way as i have in this post. But my reasoning for this is simple. The OP still did the work required, no such policy is legally enforceable if it is not in the contract or company handbook, and the OP has been treated unfairly in the sense that the rule is not being applied to all employees (with regards to the other employees that were off work for weeks and still paid in full). I accept that it is upto the company whether they pay full salary or not to those off sick, but to deducted such salary when off sick when the OP has still done the work that he/she would have been required to have done if he/she had not been off sick, is in my view unfair and completely unreasonable. A company does not pay people for turning up at an office, it pays them for the work they do for the company, and in this case the work was still done by the OP and as such he/she should be paid for the work he/she did in accordance to his/her employment contract regardless of the fact the work was done from home.

[Noushki]

Re: Urgent Employment Lawyer Advise Needed!

Teaboy, Thank you so much for your response!
I totally agree with everything you said. I would accept the Company stopping to pay my full salary after 7 days of sick leave per year, if as you mentioned, it was legally stated somewhere, but it is not! I sent them an email asking where is the provision with this 7 days per year rule and still have not got any response.

I also agree with you that it was unfair to not pay me considering that i did my work. And i would not have to work from home while sick, if company made an eefort to replae me with a temporary cover. Instead they told me they do not have anybody to cover and left me no choice.

Anyway, let's see what they come back with. My point is- I do not care if they stop paying after 7 days as long as everyone in the company is legally bounded by the same rule and treated equally. I do respect company's policies, but I will not respect some made up rule that no one is aware of.


Also, another question for you. My Contract and the Employee handbook mention the same policies that contradict each other. I raised it with HR before, but they completely ignored me. If they change company's policies, are they not required to amend the contract by issuing an appendix/ or issueing a new contract?

[teaboy2]

Re: Urgent Employment Lawyer Advise Needed!

Hi Noushki - If they were to change a term in your contract of employment then they would need to issue an addendum along with a copy to be signed and handed back into the company. If they wish to change the terms or company policies in the company handbook they need to issue a new version of the company handbook and infrom each employee in writing of the exact terms or policy that have been changed, by stating what the previous policy was and what the new policy is.

If the terms in the handbook contradict a term in your contract then your contract will take precendence over any term in the company handbook.

By the way you may well actually have grounds for discrimination, despite my previous view of it not being discrimination as according to the government site, which a link to it was provided in an earlier post here, the following applies - "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)." But generally discrimination in employment terms is based on Sex, Sexual Orientation, Race and disability - Hence why i said earlier that i did not feel it was discrimination, but according to the government website such act by the employer maywell be discrimination in regards to sick pay schemes. Though i suspect when they state catagory they are referring to sex, sexual orientation, race or disability.

[Noushki]

Re: Urgent Employment Lawyer Advise Needed!

Teaboy- below response from my HR. How do I respond to this?

"In response to your point below, 7 days is what XXX deems to be an acceptable number of days for an employee to be off sick and this is general in most firms. Obviously there are circumstances where an individual might need to take a lot more time off, if they have a serious illness or something like that and generally these are signed off by their doctor.

In order to be helpful, we’ve pulled the wording from your contract where it mentions sickness:
“The Company may, at its discretion, pay salary over and above Statutory Sick Pay (“SSP), in the event of your absence from work due to sickness or injury”.
Plus the piece from the Handbook:
“Any payments made to you during any period of absence on account of sickness or incapacity (other than payments required to be made under the Government’s Statutory Sick Pay Scheme (“SSP”)) are at the absolute discretion of the Company. The Company reserves the right to suspend or reduce such payments at any time".
I hope this is helpful".



They say it is a general rule (is it????), but this is not mentioned anywhere, so how employees supposed to be aware of it? If it's not stated anywhere. Does Emplyment Law mentions 7 days rule?


They previously told me that providing medical note from my GP will not help my case and they will still not pay my salary in full for the rest of 2011. So are they saying that having chest infection or flu is not a life threatening ilness and even if my GP tells me to stay in bed for few days, I do not deserve to be paid? But someone who had an operation, deserves to be paid? Where is the line? Who decides it?[/font]

See previous note from HR meeting:
"XXX confirmed that payment while off sick was at the company’s discretion. Whilst we will consider any future sickness absences individually at the time, you should assume that, unless in exceptional circumstances; you will not receive salary payments if you are off sick again during the remainder of 2011.
I reiterated that on no occasion had I asked you to provide a medical certificate for sickness of less than 7 days duration. You had actually taken that decision yourself and not on the advice of the firm (NOT TRUE, SHE DIDN'T BUT HER COLLEAGUE DID IN THE PAST, MANY TIMES!).
You asked if by providing a medical certificate (even for sickness absences of less than 7 days) this would entitle you to receive full salary payment for that absence. XXX confirmed that this withdrawal of salary payment was due to the number of days that you had already been absent this year and was not an indication that we are doubting that you were genuinely ill."

[teaboy2]

Re: Urgent Employment Lawyer Advise Needed!

I assume that is just a response to your original email to them, as such just ignore it as its just a standard response. Its the response, if any, to the letter i told you to write that is the important thing, as it relies on the fact you still did the work, that you would have done if you had not been sick. Its their response to that which we need to know now, as they have made it clear their rule does not appear in the company had book inregards to the 7 days rules. Just because a certain person sees 7 days as acceptable, it does not make it company policy or policy that would be enforcable as a term of your employment nor does such a rule take into account that you still did your work even though you were at home sick.

[Noushki]

Re: Urgent Employment Lawyer Advise Needed!

Hi
I am not disputing with them the one unpaid day back in April 2011, cause i think it is too late for this.

What I am trying to figure out is the the rule that apparently i have to obbey in the future, if I fall sick this year which they claim they won't pay for. Therefgore I sent them a very short email asking where is the provision for that 7 days per year rule as it is not noted in my contract or employee handbook.

Can you confirm whether company can make up a rule like this without writing it in the employment contract or employees handbook as a general policy?

They mention that my contract states : "The Company may, at its discretion, pay salary over and above Statutory Sick Pay (“SSP), in the event of your absence from work due to sickness or injury".
Okay it says it, but it still does not explain why I have to respect 7 days of acceptable paid sick lieave per year rule, if no one is aware of it and it is not written anywhere? In my oppinion it is not legally bounding.

If i do not respond to them, then the matter is not solved. What do i do? What do I write that has got an importan information referring to the Employment Law that can support my argument?