Legal Updates

Employment Law – Harassment – Victimisation – Sick Pay

The case of Kaur and Another v British Library and Others [2008], involved a dispute over sick pay. The employees in question raised a number of complaints of harassment and victimisation with the employer in this case. They also raised a complaint that they were overlooked in respect of promotion opportunities.

They further alleged that the working environment was hostile and intimidating to the extent that in early 2006 both went off work due to work-related stress. Both employees saw a doctor, J, in September 2006.

J authorised occupational heath reports. The reports stated that the employees were unfit for work, and that if they were to return to work before their work-related issues were remedied their stress-related symptoms would likely to recur or deteriorate.

Initially the employees provided sick certificates for the period up to the 9th and 11th of September respectively. At that point in time the employer had begun a stage 2 investigation into their complaints under its Harassment, Bullying and Discrimination Policy.

Subsequently, in December 2006, the employer wrote to the employees. The employer stated that under the employer's attendance policy the employees had to provide GP certificates for all sickness absences from work. Furthermore, failure to provide such certificates would result in the withholding of sick pay.

By a letter dated the 22nd of January 2007, the employees stated that their absence from work was related to their employment, and not any medical reasons. They also demanded full payment pending the outcome of the stage 2 investigation. The employees did not return to work until the 19th of April 2007. Subsequently, the employees brought claims for:

• Unlawful discrimination;
• Harassment;
• Victimisation; and
• Unlawful deductions from wages.

The tribunal elected to dismiss the first three claims. However, the claim for unlawful deductions from wages was allowed in part for certain specific periods.

The employer appealed against this decision.

The employer argued that the employees were absent from work without the contractual authority of the employer, and therefore they were not entitled to wages. It was submitted that the employees in question had received sick pay even though they had not provided GP certificates. Furthermore, the employer stated that the employees had failed to accept positions offered to them in another of the employer's working areas. It was on these grounds that the employer argued that the employees' claims should be dismissed.

The appeal was allowed.

It was held that the employees had to establish a legal right to full payment of wages under their contract or other operation of law before it could be decided that unauthorised deductions had been made. Additionally, the employees had to be willing and able to carry out the work required of them.

In this case it was held that the tribunal had been erroneous as it had asked the wrong question. The question to be asked was not: “Are the employees not entitled to sick pay due to the absence of sick certificates after the 9th or 11th of September?”. The question to be asked was: “Are the employees willing and able to work?”.

It was held that on the facts of this case, the employees had been unwilling to return to work until they received notice of the outcome of the grievance investigation. The employees had relied on the reports as provided by J, which gave the opinion that the employees were unfit to return to work until the work related issues were resolved. Therefore, it was held that as the employees were not able and willing to work, they had not been entitled to receive sick pay.

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© RT COOPERS, 2009. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.