Mr Christopher Martin v Openreach Ltd — 2023

The claimant was employed as an apprentice network engineer and was absent from work from March 2021 after developing an ear infection later diagnosed as left-sided mastoiditis with vestibular symptoms. His contractual company sick pay ended in August 2021, after which he received no pay until 24 December 2021, when he was restored to full contractual pay on light duties.

The tribunal found that the claimant was fit and able to return to work for the respondent in at least some capacity for at least part of the period between 11 August and 24 December 2021. That finding was based on occupational health evidence, fit notes, and the absence of steps by the respondent until mid-December to address possible alternative employment or duties.

The tribunal considered the assessment of the period of loss to be not entirely straightforward and partly speculative. Taking account of the time that might have been needed to identify suitable duties, the claimant's likely half-pay sick pay in August, and a November fit note stating he was unfit for any work, it concluded that the fairest outcome was compensation for two months' wages unlawfully deducted or not paid when the claimant was able to work.