MR STEVENS (USDAW) FOR THE v Mr George (litigation Consultant) — 2021

The claimant, Lloyd Davies, brought a claim for unlawful deductions from wages arising from the Respondent's suspension of its Sickness Benefit Scheme in March 2020. He was a Grade 5 Relief Team Leader with service since 2010 and, on the Tribunal's findings, his contract and the Sickness Benefit Scheme together governed entitlement to Company Sick Pay. When the claimant tested positive for Covid-19 and self-isolated in October 2020, he was paid SSP only, because the enhanced scheme had been withdrawn with immediate effect on 17 March 2020 and later reinstated on 1 February 2021.

The Tribunal accepted the Respondent's case that paragraph 10 of the Scheme allowed it to withdraw the scheme as a whole where absenteeism reached an unsatisfactory level, and that the wording was not limited to individual cases. It also relied on paragraph 1a of the Scheme and paragraph 8 of the Attendance Management Policy, both of which referred to the discretionary nature of Company Sick Pay. The March 2020 notice was treated as a response to the expected rise in absence levels during the emerging Covid-19 pandemic and the associated financial pressures, and the Tribunal held that the Respondent was permitted to act pre-emptively rather than waiting for actual absence levels to rise.

The Tribunal rejected the claimant's arguments that the power to suspend only applied case by case, that the exclusions in the Scheme prevented wholesale withdrawal, and that the contract phrase "will be made" required payment in all circumstances after three days. Reading the contract and policies together, it concluded that the claimant's entitlement to Company Sick Pay was conditional on the scheme not being withdrawn. It therefore found that the Respondent was entitled to suspend the scheme with immediate effect on 17 March 2020, that there was no breach of contract, and that no unlawful deductions were made when the claimant received SSP in October 2020. The claim was dismissed.