Mr L Ndovie v Cygnet Hospital Bury — 2020

Mr L Ndovie brought a claim under section 13 of the Employment Rights Act 1996 alleging unlawful deduction from wages in relation to sickness absence from 26 November 2018 to 11 February 2019. His case was that, because he had sustained an injury at work, he should have received full pay throughout that period. The respondent said he was only ever entitled to company sick pay for 9 days and statutory sick pay thereafter, and that the four weeks of full pay he received were paid at the respondent's discretion.

The matter was listed as a preliminary hearing to consider time limits, strike-out under Rule 37, and whether a deposit order was appropriate. The tribunal referred to the strike-out jurisdiction and the cautious approach in authorities including Tayside Public Transport Co Ltd v Reilly, Mbuisa v Cygnet Healthcare Ltd, Mechkarov v Citibank NA and Chandok v Tirkey. It also noted that, under section 13 and section 27 of the ERA 1996, the claimant had to show wages were properly payable and relied on New Century Cleaning Co Ltd v Church for the proposition that there must be a legal entitlement to the payment.

Looking at the employment contract and handbook, the tribunal found that the claimant was contractually entitled to statutory sick pay and that company sick pay was discretionary. The handbook's industrial injuries provision allowed sick pay to be extended for up to four weeks at the respondent's discretion, and the respondent had exercised that discretion by paying full pay for the first four weeks. The tribunal found that the contract and handbook did not provide for anything beyond that, and that there was no express or implied term entitling the claimant to more.

The tribunal concluded that the contemporaneous documents disproved the claim and that there was no outstanding dispute of fact requiring a full hearing. It held that the claim had no reasonable prospects of success and struck it out.