Mr Zinzan (husband) For the v Cinnabar Support and Living Ltd — 2021

The claimant was absent from work for six weeks from 22 January 2021, supported throughout by fit notes. Her contract provided a home sick pay scheme payable in tandem with SSP, with up to six weeks' basic pay in any rolling 12 month period, subject to the Employee Handbook. The respondent paid only SSP of £520.39 for the whole absence.

The tribunal found that the claimant had a contractual entitlement to six weeks' sick pay based on her basic salary of £48,000 per annum. It rejected the respondent's position that it could withhold contractual sick pay because the claimant did not contact management daily during the first week of absence. The tribunal found as a matter of fact that the respondent did not withhold the contractual pay on that ground, and in any event any such breach was not fundamental and did not discharge the respondent from its obligation to pay the contractual sick pay.

The tribunal further held that the discretion to terminate or vary the Home Sickness Scheme was subject to implied terms that it would only be exercised on reasonable notice and not during a period of sickness absence. It said those terms were implied by the officious bystander test and to give business efficacy to the clause. The tribunal found that an employee should have advance notice of rights during sickness absence and that the respondent could not withdraw contractual sick pay halfway through the six-week sickness period.

On remedy, the tribunal calculated six weeks' basic pay at £923.07 per week, totalling £5,538, less SSP already paid of £520.39, leaving £5,017.61 gross. Judgment was entered for that sum, subject to tax and National Insurance deductions.