Martin Brewer and Esther Smith advise on whether you can withhold an employee’s pay while you decide if an absence was unauthorised.
Withholding pay
We have an employee who was employed on a fixed-term contract. They suffered an injury and were absent from work for three weeks in total. The first week was self certified and the following two weeks were covered by medical certificates (two certificates, one for each week).
The employee says they posted the first medical certificate to office but it hasn’t been received. The second was posted and the line manager confirmed that they had received it but that now appears to be missing. The employee has requested a duplicate of the first certificate. The absence was an inconvenience to the manager and communications have broken down between them. The employee says the manager was less than sympathetic to them and the employee has subsequently resigned. The line manager has asked payroll to withhold all this month’s salary as we may decide the absence is unauthorised. I feel that is unfair as we have seen the second certificate but have mislaid it.
Legal advice:
Martin Brewer, partner, Mills & Reeve
This seems to be personal. From what you say, currently two weeks are in dispute but in fact it is accepted that for the second of the two, you accept that you saw the certificate but have lost it. That second week is clearly not therefore unauthorised absence, it is sickness absence and it would be unlawful to withhold pay in respect of it. It seems that no certificate covering the first week has ever been received. If this is correct then the first week was unauthorised absence and you are correct to withhold pay but ought to confirm that if a medical certificate is received covering the period sick pay will be paid. There is no justification for withholding any more than one week’s pay.
Martin Brewer can be contacted at martin.brewer@mills-reeve.com. For further information, please visit Mills & Reeve.
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Esther Smith, partner, Thomas Eggar
You should certainly be paying company sick pay, if any is due, or at least Statutory Sick Pay (SSP) for the second certified period of absence, and if you are not happy to assume that the employee’s version of events regarding the first certificate is correct, you could make further enquiries of their GP to ask for a duplicate certificate.
If you are going to withhold part of the pay due whilst this is carried out, you should make this very clear to the employee, so that they understand what is being done and why, and tell them that once confirmation is received from the GP the additional payment will be forwarded to them. Given that SSP is a statutory payment, it may be worth saying to the employee that you cannot pay it out without the sick certificate, rather than you are choosing not to.
If the employee is genuine it should be easy to get the information you need, and then make the payment to them. If they are not, then you have the money and it is unlikely that they will pursue matters if they know that they have been dishonest with you.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
One Response
Withholding Pay
Operational Advice
Whilst I do not disagree with the Employment Law specialists advice, an alternative operational view would be to resolve this in a speedy way with a phone call to the GP i.e. can the GP clarify that the sick notes were issued? can they provide a duplicate?
Like most scenarios, it is important to gain all the facts first before making a final decision.
Was the absence due to an injury at work? Was this taken into consideration? If the accident was as a result of poor H & S, then it may be advisable to consider.
My understanding of unauthorised absence is where the employee does not contact the employer at all to inform. However, it appears in this case that the employer (manager) were aware of the absence from the start, and in this case it may be advisable to pay the appropriate sick payment.
As stated by Martin, it seems personal, and therefore I would treat this very carefully…. is there a clash of personalities here, then there is more to the decision of witholding than meets the eye.
Sarah Stokes is a HR Consultant for P3 People Management. Foir further information, please visit http://www.p3pm.co.uk