Ms Victoria Leach v Hillcrest Children’s Services Limited, part of the Outcomes First Group — 2021

Ms Victoria Leach worked for Hillcrest Children’s Services Limited as a Teaching Assistant. She was injured at work on 10 October 2019 and, from around 7 November 2019, did not return to work because of that injury. Her employment ended by letter dated 18 September 2020, and the claim concerned the respondent’s treatment of her during sick leave, especially her entitlement to sick pay between the injury and termination.

The tribunal found that the respondent’s standard terms and policies on company sick pay applied to the claimant’s employment. Those documents provided no sick pay during probation, one week’s pay after probation, and a discretion to award company sick pay of up to three months in cases broadly including injury sustained during work. Although the claimant was still within probation, the tribunal found that the discretion was not limited to employees who had completed probation. On the balance of probabilities, the respondent exercised that discretion for November 2019, supported by a text message on 28 October 2019 saying paid time off had been approved and by the fact that the claimant was in fact paid in full for November.

The tribunal found that the deduction made from the claimant’s December 2019 salary was an unlawful deduction from wages because she was entitled to company sick pay for November 2019. It rejected an unlawful deduction argument in relation to the April 2020 salary, finding that she was still off sick then, there was no evidence that discretion had been exercised in her favour for April, and her entitlement for that month was limited to SSP. It also found that by the hearing the claimant had already been paid the amount that would have put her in the position she would have been in had company sick pay been paid from 1 November 2019 to 4 February 2020, after taking account of SSP received and the April overpayment, so nothing remained owing and no financial award was made.

The claimant’s breach of contract claim was dismissed for want of jurisdiction under the Employment Tribunals (Extension of Jurisdiction) (England and Wales) Order 1994 because the ET1 was presented while she was still employed and the claim was not outstanding on termination. The respondent’s employer’s contract counterclaim was also dismissed. The tribunal made no finding on the claimant’s contractual entitlement to notice pay.