Rebecca Jones secures dismissal on behalf of Respondent in claim for unlawful deduction of wages
On Monday 20 August 2018, Rebecca Jones of Oriel Chambers instructed by Mark Bland of Percy
Hughes Roberts on behalf of the Respondent, secured the dismissal of a claim for unlawful
deduction of wages brought pursuant to S.13 of the Employment Rights Act 1996.
By way of a reserved judgment, Employment Judge Shotter, sitting in the Employment Tribunal in Liverpool found that the Claimant did not suffer an unlawful deduction of wages and that the Claimant’s claim was not well-founded and should be dismissed.
The Claimant claimed that the Respondent had unlawfully deducted his wages when he had been
absent from work. In particular, the Claimant asserted that the Respondent’s sick pay scheme was
contractual and should be determined as an entitlement based on eligibility. The Respondent
disputed this, maintaining that the Claimant was not contractually entitled to sick pay over and
above Statutory Sick Pay (“SSP”), and the Sick and Industrial Injury Benefits Scheme (“SIIBS”) in
place did not form part of the terms and conditions of employment, was discretionary and could be
withdrawn at any time.
The issues to be decided in the case were as follows:
- Whether or not the Claimant was automatically entitled to sick pay pursuant to the SIIBS as a result of him satisfying the eligibility criteria? And;
If the SIIBS Scheme was in operation as a whole across the company, did it lose its
discretionary element? Further, should it be applied according to the Scheme’s rules?
Furthermore, was there a contractual entitlement for the Claimant to receive sick pay under the
The Tribunal found that the Claimant was not automatically entitled to SIIBS as a result of him
satisfying the eligibility criteria. The Tribunal noted the most recent company documentation
that Rebecca had referred the Tribunal to and observed that this and all of the other
documentation confirmed it was discretionary.
The Judge rejected all of the Claimant’s arguments in this regard and held in particular, that
there was no entitlement as a result of the use of the word ‘entitlement’ as the “…words cannot
be read in a vacuum…The Claimant only becomes entitled when the Respondent uses its
discretion in his or her favour by taking the view enhanced sick pay should be paid; it can also
take the contrary view that it should not for the very reason that it is an ex-gratia noncontractual