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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.


Decision

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Scheme (“SIIBS”) in place did not form part of the terms and conditions of employment, was discretionary and could be withdrawn at any time.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:

  1. 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;
  2. 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 Scheme?

The Tribunal held respectively as follows:
  1. 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.

  2. 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 discretionary payment.”

Rebecca Jones accepts instructions for Claimants and Respondents in employment cases. For further information please email Rebecca Jones.