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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rafting and taking your horse cross country (which are more likely to result in injury) could result in sick pay being withdrawn but not general sports?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.

Anna Denton-Jones
Refreshing Law

Often employees will refuse to attend Occupational Health or to provide consent for the employer to write to their GP. Sometimes they believe that this is a delaying tactic, sometimes they probably know that they won’t like the outcome or the information that will be provided, but where does this leave the employer?

If you’re writing to a GP or consultant who is responsible for the care of their patient, in the absence of the employee’s consent in relation to the Access To Medical Reports Act 1988, then the employer is stuck and unable to obtain information from that physician. Sometimes employees don’t realise that in the absence of their co-operation, you will still be entitled to make decisions, for example about whether or not they are capable of performing the duties you engaged them to do. In such a scenario sometimes by explaining to an employee that you will have to make decisions about them in a vacuum, given that they won’t consent, they change their mind and agree to your request. An alternative for the employer in this scenario is to actually require the employee to attend an Occupational Health physician as, strictly speaking, the Access To Medical Reports Act won’t apply where the employer is asking for a one-off report because that medic will not have been (or be) responsible for the individual’s clinical care. If the employee attends an appointment with such a doctor then they will have implicitly consented to disclosure to the employer of any report resulting from that examination. (Kapadia -v- London Borough of Lambeth [2000])

In order to protect themselves, employers will often include a clause in their contract of employment that requires an employee to co-operate and attend a medic where the employer wishes for a report to be written. Technically, an employee’s failure to comply with a reasonable instruction in this regard would be a disciplinary matter. Unfortunately for the employer, failing to follow this reasonable instruction is unlikely to form grounds for dismissal as opposed to other disciplinary action such as a warning. Even if there had been prior warnings in this regard, an employer is going to have to show that dismissal for failure to co-operate is within the band of reasonable responses as well as following a fair procedure in respect of the disciplinary in order to avoid any unfair dismissal claims. Thus it would become central to such a case to know why the individual was refusing to co-operate and whether or not that was reasonable.

It is probably going to be safer for an employer, instead of going down the disciplinary route, to consider dismissal for incapacity. If the employer has done all it reasonably can to obtain medical evidence and the individual continues to withhold consent, a decision to dismiss may well be within the range of reasonable responses (Elmbridge Housing Trust -v- O’Donoghue [2004])

When it comes to looking at fairness in such cases, the fact that the employer had an express contractual term will be useful. It will also have been useful to have warned the employee what the consequences of failing to co-operate may be.

In obtaining an employee’s co-operation it may also be useful to explain to them that, if they are concerned about the contents of a report, they can provide limited consent. For example, an employee might be worried about revealing information about past illnesses that are not relevant to their current condition. The employer might, in these sorts of cases, agree to limit information to a certain time period or to confine reporting to the extent to which the employee is able to do their job.

Whilst it might be frustrating to have employees who won’t co-operate, being patient, making a number of attempts to obtain information and persuade the employee before making decisions in the absence of medical advice, and generally acting in a reasonable manner, is likely to put you in a favourable light.

Anna Denton-Jones
Refreshing Law

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