Mr C McGaw v Represented by: Mr M O’Carroll - Advocate XPO Supply Chain Limited — 2019

Mr C McGaw brought a claim for unauthorised deduction from wages arising from sick pay paid during sickness absence between 26 November 2018 and 7 June 2019. The tribunal accepted that the claimant was employed on terms which referred to the respondent's sickness and accident scheme, and it held that the scheme operated on a rolling 12-month basis rather than giving six months' contractual sick pay for each separate illness period.

On that basis, the tribunal found that the claimant's entitlement to contractual sick pay had ended in December 2018 after three weeks' company sick pay had been paid, so no further contractual sick pay was properly payable for the period in issue. The tribunal rejected the claimant's evidence that he had no knowledge of the rolling-year approach, finding that his long service and trade union role made that account not credible, and it accepted the respondent's evidence that the scheme had long operated on a rolling basis.

The tribunal nevertheless held that statutory sick pay remained properly payable throughout the absence. It found that the respondent failed to pay the claimant the full statutory sick pay due in May 2019 and June 2019, and it was not persuaded that the shortfall was attributable to an error of computation within section 13(4) ERA 1996. It also found that the respondent had not established that the shortfall was an authorised deduction for previous overpayment under section 14(1) ERA 1996. The resulting unlawful deduction was calculated as PS706.87 for May 2019 plus PS391.04 for June 2019, totaling PS1,097.91.

The tribunal did not decide whether the respondent was entitled to recover the separately notified overpayment figure of PS3,914.51, because there was no counterclaim and that question was outside the scope of the proceedings. Judgment was therefore entered for the claimant in the sum of PS1,097.91 only.