Mr M Spence v Represented by Mr D Reid USDAW Written submissions Sainsbury’s Supermarkets Ltd — 2020

This was a preliminary hearing on the respondent's application to strike out Mr M Spence's unlawful deduction from wages claim for want of jurisdiction and/or no reasonable prospects of success. The claimant had been employed by Sainsbury's Supermarkets Ltd since 1 October 2000 and went on sick leave on 26 August 2019. He received company sick pay until 16 December 2019, after a period of absence review meetings and an occupational health assessment on 4 November 2019 which said he was not then fit to return to work and was unlikely to be fit for a further 6 to 8 weeks.

The dispute was whether the respondent was entitled to stop company sick pay from 17 December 2019 to the end of the sick line. The claimant said the withdrawal was unexplained and that none of the policy criteria for withholding pay applied. The respondent said company sick pay was a discretionary benefit and that it had been withheld because the claimant had unreasonably refused suitable alternative duties or workplace adjustments that would have allowed a return to work.

The tribunal held that it had jurisdiction to consider the section 13 Employment Rights Act 1996 claim where the issue was the construction of the contract and whether it created a legal entitlement to payment. It accepted the claimant's submission that company sick pay could amount to a contractual entitlement to a discretionary benefit, and it rejected the respondent's submission that the wording necessarily meant there was no entitlement at all. The judge also held that the discretion was not unfettered, because it remained subject to implied terms requiring it not to be exercised perversely, arbitrarily, irrationally or in breach of mutual trust and confidence.

Applying the strike-out threshold, the tribunal decided that it could not say the claim had no reasonable prospects of success if the claimant proved the facts he relied on, including the occupational health report, the driving issue, the medication point and the absence of a stated reason for stopping company sick pay. Because those matters were disputed and evidence would be needed, the respondent's application for strike out was refused and the case was listed for a two-day remote final hearing by video conference.