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You are In: Home Page | About Thompsons | Information and Resources | LELR Issue 55

Issue 55 (February 2001)

Contents

Protecting the former employee
Illegal contracts and sex discrimination
Positively equal
Equal pay for doctor
Sick of not being paid
Interested chief can't sit
Entitlement to damages for "stress"

Sick of not being paid

There has been an interesting decision in the EAT where the question of whether an employee presenting themselves fit for work, following a period of sick leave, is contractually entitled to be paid.

Ms Beveridge, a member of the cabin crew, had been a longstanding employee of KLM when she went off sick. Ms Beveridge was paid for her sickness absence as per her contract which entitled her to payment for the first 26 weeks of sickness only. Ms Beveridge exhausted that sick leave and remained unfit for work until the beginning of 1999 when she presented her employer with a certificate signed by her GP, advising them that she was fit to return to work on 1 February 1999. KLM refused to allow her to return to work on that date as they wanted to check out her fitness to return to work for themselves. It was another six weeks before KLM agreed Ms Beveridge was fit and let her return to work. KLM did not pay her for the six weeks from 1 February until her return to work. So she made a claim to the tribunal for unlawful deductions from her wages for this period.

Ms Beveridge lost her case in the Employment Tribunal, but was successful in her appeal to the EAT. She submitted that an employee had a contractual right to payment of wages when presenting him or herself for work unless the contract in a specific situation expressly denied that right for a particular reason. There was no such provision in her contract. The EAT accepted this submission, stating that Ms Beveridge could have done no more than she had done and thus it was for the employer to show in this context the contract expressly entitled the employer to withhold payment. The decision sits with the background common law authorities, namely: O'Grady v M Saper Ltd [1940] 2 KB 469; Mears v Safecar Security Ltd [1981] IRLR 99; and Miller v Hamworthy Engineering Ltd [1986] IRLR.