Compulsory unpaid sick leave/Covid query
Discussion
What’s everyone’s take on this please…
Work in healthcare, current outbreak status (staff and residents ‘X’ amount of positive cases). Daily compulsory testing in place. Any staff member who tests positive leaves the site and is unpaid until returns to work after one negative test.
It’s understandable when testing is optional that sick leave would be unpaid, no one (I would hope) would morally go in to work knowingly positive at the risk of vulnerable older people. But since testing is being enforced and staff not allowed to work if positive then surely this is withholding wages?
Work isn’t viable from home. Many staff showing no symptoms or more often just a mild cold or sore throat.
Interestingly should any staff refuse to test they’d probably be suspended on full pay pending disciplinary.
All views and useful information welcome. Gov website and other googling not helping.
Work in healthcare, current outbreak status (staff and residents ‘X’ amount of positive cases). Daily compulsory testing in place. Any staff member who tests positive leaves the site and is unpaid until returns to work after one negative test.
It’s understandable when testing is optional that sick leave would be unpaid, no one (I would hope) would morally go in to work knowingly positive at the risk of vulnerable older people. But since testing is being enforced and staff not allowed to work if positive then surely this is withholding wages?
Work isn’t viable from home. Many staff showing no symptoms or more often just a mild cold or sore throat.
Interestingly should any staff refuse to test they’d probably be suspended on full pay pending disciplinary.
All views and useful information welcome. Gov website and other googling not helping.
My recent experience makes me think this has to be a company specific policy. I was on a site last week where testing was in place and staff who were sent home with a positive certainly didn't seem too worried about it plus I've heard no talk about unpaid sickleave due to covid.
Having said that I also half heard a conversation saying all testing (even for outbreaks) was now scrapped, no LFTs anymore. Then next day site wide PCR testing was being done so I would not be suprised if there was a lot of confusion about it all still.
My uneducated guess is enforced unpaid leave, sickness or not, down to a companies own policy isn't going to be legal but I'm sure others more qualified will clarify.
Having said that I also half heard a conversation saying all testing (even for outbreaks) was now scrapped, no LFTs anymore. Then next day site wide PCR testing was being done so I would not be suprised if there was a lot of confusion about it all still.
My uneducated guess is enforced unpaid leave, sickness or not, down to a companies own policy isn't going to be legal but I'm sure others more qualified will clarify.
Gretchen said:
Daily compulsory testing in place. Any staff member who tests positive leaves the site and is unpaid until returns to work after one negative test.
The only way I can see this being legally enforceable is if the person has exceeded 28 days paid sick leave prior to receiving the positive test.This assumes that the person is employed on a normal PAYE basis, not zero hours or a freelance/contractor basis where time sheets might apply. In these cases then they may indeed expect no pay.
Gretchen said:
What’s everyone’s take on this please…
Work in healthcare, current outbreak status (staff and residents ‘X’ amount of positive cases). Daily compulsory testing in place. Any staff member who tests positive leaves the site and is unpaid until returns to work after one negative test.
It’s understandable when testing is optional that sick leave would be unpaid, no one (I would hope) would morally go in to work knowingly positive at the risk of vulnerable older people. But since testing is being enforced and staff not allowed to work if positive then surely this is withholding wages?
Work isn’t viable from home. Many staff showing no symptoms or more often just a mild cold or sore throat.
Interestingly should any staff refuse to test they’d probably be suspended on full pay pending disciplinary.
All views and useful information welcome. Gov website and other googling not helping.
Unpaid or statutory sick pay?Work in healthcare, current outbreak status (staff and residents ‘X’ amount of positive cases). Daily compulsory testing in place. Any staff member who tests positive leaves the site and is unpaid until returns to work after one negative test.
It’s understandable when testing is optional that sick leave would be unpaid, no one (I would hope) would morally go in to work knowingly positive at the risk of vulnerable older people. But since testing is being enforced and staff not allowed to work if positive then surely this is withholding wages?
Work isn’t viable from home. Many staff showing no symptoms or more often just a mild cold or sore throat.
Interestingly should any staff refuse to test they’d probably be suspended on full pay pending disciplinary.
All views and useful information welcome. Gov website and other googling not helping.
Welcome to the 'unintended' consequences of our overreaction to Covid.
Ashfordian said:
Unpaid or statutory sick pay?
Welcome to the 'unintended' consequences of our overreaction to Covid.
It would be SSP after four days (I think). Company don’t pay sick. Welcome to the 'unintended' consequences of our overreaction to Covid.
Previously any proven sick due to Covid positive was paid in full. This ended last year around September last year when compulsory testing was withdrawn.
https://www.navigatorlaw.co.uk/ask-the-expert/ask-...
Don't know how helpful the article is, but it implies that the employer is in the wrong in your case. Someone who has produced a positive coronavirus test but has no symptoms is more than able to go to work and is probably willing to do so. That means the case isn't that the employee can't work, but that the employer doesn't want him or her to come in - the employer cannot decide unilaterally that someone is unfit for work. The problem for the employer is that such circumstances fall foul of the implied duty to pay wages in employment contracts, whereby wages need to be paid in accordance with contracted hours if the employee is willing and able to work them, regardless of whether any work is actually done.
The employer's actions would be fine if the employees with positive tests were being paid, but not if they are trying to enforce periods of unpaid absence. Certain contracts have exclusion clauses from the 'implied duty to pay', so it's worth checking yours. If such a clause is not present, this does feel as if it has the potential to be a breach of contract.
Don't know how helpful the article is, but it implies that the employer is in the wrong in your case. Someone who has produced a positive coronavirus test but has no symptoms is more than able to go to work and is probably willing to do so. That means the case isn't that the employee can't work, but that the employer doesn't want him or her to come in - the employer cannot decide unilaterally that someone is unfit for work. The problem for the employer is that such circumstances fall foul of the implied duty to pay wages in employment contracts, whereby wages need to be paid in accordance with contracted hours if the employee is willing and able to work them, regardless of whether any work is actually done.
The employer's actions would be fine if the employees with positive tests were being paid, but not if they are trying to enforce periods of unpaid absence. Certain contracts have exclusion clauses from the 'implied duty to pay', so it's worth checking yours. If such a clause is not present, this does feel as if it has the potential to be a breach of contract.
Missy Charm said:
https://www.navigatorlaw.co.uk/ask-the-expert/ask-...
Don't know how helpful the article is, but it implies that the employer is in the wrong in your case. Someone who has produced a positive coronavirus test but has no symptoms is more than able to go to work and is probably willing to do so. That means the case isn't that the employee can't work, but that the employer doesn't want him or her to come in - the employer cannot decide unilaterally that someone is unfit for work. The problem for the employer is that such circumstances fall foul of the implied duty to pay wages in employment contracts, whereby wages need to be paid in accordance with contracted hours if the employee is willing and able to work them, regardless of whether any work is actually done.
The employer's actions would be fine if the employees with positive tests were being paid, but not if they are trying to enforce periods of unpaid absence. Certain contracts have exclusion clauses from the 'implied duty to pay', so it's worth checking yours. If such a clause is not present, this does feel as if it has the potential to be a breach of contract.
Thank you! This is exactly what I thought but was struggling to find any real ‘evidence’. Don't know how helpful the article is, but it implies that the employer is in the wrong in your case. Someone who has produced a positive coronavirus test but has no symptoms is more than able to go to work and is probably willing to do so. That means the case isn't that the employee can't work, but that the employer doesn't want him or her to come in - the employer cannot decide unilaterally that someone is unfit for work. The problem for the employer is that such circumstances fall foul of the implied duty to pay wages in employment contracts, whereby wages need to be paid in accordance with contracted hours if the employee is willing and able to work them, regardless of whether any work is actually done.
The employer's actions would be fine if the employees with positive tests were being paid, but not if they are trying to enforce periods of unpaid absence. Certain contracts have exclusion clauses from the 'implied duty to pay', so it's worth checking yours. If such a clause is not present, this does feel as if it has the potential to be a breach of contract.
The argument they presented is ‘you wouldn’t work when/if you were sick’ but many with positive tests haven’t been sick enough to not work - and work can’t be done from home so there wasn’t an option.
Gretchen said:
Thank you! This is exactly what I thought but was struggling to find any real ‘evidence’.
The argument they presented is ‘you wouldn’t work when/if you were sick’ but many with positive tests haven’t been sick enough to not work - and work can’t be done from home so there wasn’t an option.
Don't mention it. Their argument doesn't hold water in my opinion; certainly something worth pursuing, anyway. The argument they presented is ‘you wouldn’t work when/if you were sick’ but many with positive tests haven’t been sick enough to not work - and work can’t be done from home so there wasn’t an option.
UPDATE
Had a meeting, company still withholding pay and have taken this line…
‘JMJ Not legal - you work for xxxxxxxx, so it is our companies Policy and procedures. We follow government guidelines but company policies.’ (Sic)
Apparently company policy and procedure is above any law. Which is interesting.
Any journalists, solicitors or other interested parties in the house?
Had a meeting, company still withholding pay and have taken this line…
‘JMJ Not legal - you work for xxxxxxxx, so it is our companies Policy and procedures. We follow government guidelines but company policies.’ (Sic)
Apparently company policy and procedure is above any law. Which is interesting.
Any journalists, solicitors or other interested parties in the house?
Gretchen said:
UPDATE
Had a meeting, company still withholding pay and have taken this line…
‘JMJ Not legal - you work for xxxxxxxx, so it is our companies Policy and procedures. We follow government guidelines but company policies.’ (Sic)
Apparently company policy and procedure is above any law. Which is interesting.
Any journalists, solicitors or other interested parties in the house?
Even the CIPD don't think they should be doing that, and they're usually so fence sitting on everything they have splinter coloured pants.Had a meeting, company still withholding pay and have taken this line…
‘JMJ Not legal - you work for xxxxxxxx, so it is our companies Policy and procedures. We follow government guidelines but company policies.’ (Sic)
Apparently company policy and procedure is above any law. Which is interesting.
Any journalists, solicitors or other interested parties in the house?
https://www.cipd.co.uk/knowledge/coronavirus/absen...
Under the SSP section
"If employers require self-isolation of staff who say they are not ill and available to work, then employers will have to pay them in full (because the employer is preventing them from coming in) unless there is work which can be done from home. "
Unless there is a specific contractual basis for not paying wages (e.g. zero hour contract) then the employer has an implied duty to pay if an employee is ready, willing and able to perform work in accordance with their employment contract.
Gretchen said:
UPDATE
Had a meeting, company still withholding pay and have taken this line…
‘JMJ Not legal - you work for xxxxxxxx, so it is our companies Policy and procedures. We follow government guidelines but company policies.’ (Sic)
Apparently company policy and procedure is above any law. Which is interesting.
Any journalists, solicitors or other interested parties in the house?
Can you organise a withdrawal of labour by all staff (strike)?Had a meeting, company still withholding pay and have taken this line…
‘JMJ Not legal - you work for xxxxxxxx, so it is our companies Policy and procedures. We follow government guidelines but company policies.’ (Sic)
Apparently company policy and procedure is above any law. Which is interesting.
Any journalists, solicitors or other interested parties in the house?
That would quickly get the attention of the media, and a likely swift resolution of the issue.
And worst case is that you (and your colleagues) will get another job with an employer who treats their employees better (this is another option). You are in a strong position with the number of vacancies in your profession.
wsurfa said:
Even the CIPD don't think they should be doing that, and they're usually so fence sitting on everything they have splinter coloured pants.
https://www.cipd.co.uk/knowledge/coronavirus/absen...
Under the SSP section
"If employers require self-isolation of staff who say they are not ill and available to work, then employers will have to pay them in full (because the employer is preventing them from coming in) unless there is work which can be done from home. "
Unless there is a specific contractual basis for not paying wages (e.g. zero hour contract) then the employer has an implied duty to pay if an employee is ready, willing and able to perform work in accordance with their employment contract.
Thank you for sharing this. https://www.cipd.co.uk/knowledge/coronavirus/absen...
Under the SSP section
"If employers require self-isolation of staff who say they are not ill and available to work, then employers will have to pay them in full (because the employer is preventing them from coming in) unless there is work which can be done from home. "
Unless there is a specific contractual basis for not paying wages (e.g. zero hour contract) then the employer has an implied duty to pay if an employee is ready, willing and able to perform work in accordance with their employment contract.
Ashfordian said:
Can you organise a withdrawal of labour by all staff (strike)?
That would quickly get the attention of the media, and a likely swift resolution of the issue.
And worst case is that you (and your colleagues) will get another job with an employer who treats their employees better (this is another option). You are in a strong position with the number of vacancies in your profession.
I’m torn. I love my job, where I work and who I work with. My direct Manager has today called me ‘the backbone’ and said I’d be a huge loss, plus other lovely supportive stuff. Obviously it’s a much bigger picture and a huge national organisation. Personally I think there’s an issue in middle management. That would quickly get the attention of the media, and a likely swift resolution of the issue.
And worst case is that you (and your colleagues) will get another job with an employer who treats their employees better (this is another option). You are in a strong position with the number of vacancies in your profession.
Suggestions have ranged from take to tribunal, early conciliation to constructive dismissal. Coincidentally on the first day of my imposes sickness my former employee messaged me with a job offer and asking if I’d return.
I’ve not been in a situation with an employer like this before. I have no idea what and where to go but need to make a stand for me and other employees who have fallen foul of this ‘policy’. Basically I’m too old for this s
t. Researching Constructive Dismissal it seems it’s sometimes difficult to prove? The main line being
‘The hardest parts of a claim for constructive dismissal are often knowing whether the breach of contract was serious enough to warrant your resignation’
Does having a job where I’m in fear of being sent home unpaid with imposed sickness (also added to my record) at any time warrant my resignation? - I think it does. Would a court?
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