Mr Anthony Harmson v Lancashire County Council — 2019

The claimant brought an unlawful deduction from wages claim, contending that he should have received full pay rather than contractual sick pay at half pay for part of October 2018. He argued that he had not signed himself off sick, that the respondent should have placed him on some form of paid medical suspension or special leave, and that alleged failures in handling his return to work meant he should not have suffered the reduction in pay.

The Tribunal found that the claimant had breached earlier case management orders, but accepted that his default was not deliberate or obstructive and decided that strike out for those breaches would not be proportionate. The application was therefore determined on the separate ground that the claim had no reasonable prospects of success.

Assuming the disputed facts in the claimant's favour, the Tribunal held that the claim could not succeed as an unlawful deduction from wages claim. The claimant had not provided his services during the period and could not identify an express contractual entitlement to full pay once his entitlement to six months' full sick pay had been exhausted. The Tribunal reasoned that any alleged breach of implied terms might give rise to other remedies, but could not be used to alter the express sick pay position so as to make full pay properly payable under section 23 of the Employment Rights Act 1996. The claim was struck out under rule 37(1).