You may have come across clauses in a sickness policy or in contracts of employment where the employer reserves the right to review the payment of contractual sick pay (and not pay) if the employee had been injured participating in a sport or leisure activity.

The London Marathon this week got me thinking about this.

I’ve previously always used the example (when explaining the clause to clients) of a keen rugby player. If they get injured on a fairly regular basis why should the employer keep coughing up when this is hardly accidental and is going to keep costing them? There are even City firms who won’t allow you to (for example) play rugby because they don’t want you coming into work on a Monday morning covered in bruises and looking like you’ve been fighting because it creates the wrong impression, but that’s another matter…

None of us go out aiming to get injured, but to what extent can an employer withhold sick pay from someone who (say) breaks a leg running in a marathon, riding a horse or riding a bike?

There is no obligation to pay sick pay over and above SSP in general. If employers choose to pay contractual sick pay they can choose how long they want to pay it for, how it is to be calculated, and any conditions attached to payment. Thus it is permitted for an employer to reserve the right not to make payment in certain circumstances as in the case of the clause we are discussing or when they say nothing will be paid until the employee has passed their probationary period.

As with so many things in employment law, firstly care has to be taken to ensure that any provision by the employer is clear so that entitlement at any given time can be calculated.

Secondly, where the matter is reserved for ‘management discretion’ care needs to be taken to treat similar cases in a similar way to prevent unfairness. When does a ‘leisure activity’ (riding a bike with a friend round the park to go for a coffee) become a sport? Maybe it’s when the activity becomes competitive? Or is it more about the level of risk involved, so high risk pursuits like skiing, white water rafting and taking your horse cross country (which are more likely to result in injury) could result in sick pay being withdrawn but not general sports?

The third consideration the employer will need to make is what signal withdrawal of sick pay will give staff. Will the invoking of the clause to withhold pay come across as harsh? Will it put people off wanting to work in the organisation because it comes across as too uncaring? Most employers are quite sensible about this for this very reason and only use it in the tiny percentage of cases where a staff member is regularly injured – like the semi-professional rugby player.