This case highlights the issue of stranded workers still being “ready and willing” to work.
Covid-19 has led to some unique situations which have tested employer-employee relationships. One such scenario is where employees are unable to work even when they are ready and willing to do so. This is important because if an employer does not have a contractual right to deduct pay and there is still work to be done, the common law position is that a worker is entitled to be paid if they are ready, willing and able to do the work they are contracted for. If a worker is unable to work for a reason beyond their control, they will still be entitled to pay.
A decision of the Isle of Man Employment and Equality Tribunal (EET) has given an interesting insight into the scenario where an employee is stranded abroad because of the pandemic.
Mr Pye was an employee of DBC, who flew to Cyprus just before lockdown there and in the Isle of Man.. This resulted in Mr Pye being stuck in Cyprus for 14 weeks. Before he travelled, there was no warning from either the Manx or the Cypriot governments that borders may close, nor did DBC advise Mr Pye not to travel.
When he realised he was stuck in Cyprus, Mr Pye spoke with his line manager to inform him of the situation and he remained in regular touch with his line manager whilst he was stranded. As Mr Pye suffered from asthma and took medication for his condition the manager informed him of the Manx government's advice on self-isolation for those classed as “vulnerable”. Mr Pye consequently contacted his GP and was issued with two fit notes which were then presented to DBC.
DBC paid Mr Pye sick pay, which amounted to his full pay. However, on review DBC decided that the fit notes were “insufficient” and “unacceptable” and, on this basis, held that Mr Pye was not entitled to sick pay under his contract. DBC therefore stopped paying Mr Pye and sought to recover the payments already made.
The EET was not impressed by DBC's sudden change of attitude towards Mr Pye's sickness absence and noted the subsequent hardships this caused him. Mr Pye was awarded the sums unlawfully deducted by DBC, which was equal to his full pay for the period he was stuck in Cyprus, and was also awarded four weeks' compensatory pay, which was the maximum allowed. The EET expressed dissatisfaction with DBC's conduct and an apparent lack of internal communication between DBC's HR team and line managers.
When considering the issue of sick pay, the EET noted that Mr Pye had been signed off because he was at risk from Covid and had received valid fit notes from his GP. However, even if Mr Pye had not been classified as vulnerable and signed off sick, the EET considered there may still have been an argument as to whether he was “ready, willing and able” to work, with the EET indicating that he likely would have been considered “ready and willing” to work, but prevented by third parties (namely the Cypriot and Manx governments) from being able to do so. Therefore, DBC would not have been able to stop paying him.
This argument appears to be somewhat moot as Mr Pye would not have been asked to work even if he had been on the Isle of Man, because he was a manual worker and could not work from home.
Although the legal system on the Isle of Man is outside of the jurisdiction of England and Wales, this case gives a useful indication of how an employment tribunal on the mainland may view an employer's actions in similar circumstances were a case like this to come before them.
Employers cannot foresee all eventualities, and a case like this highlights the wisdom of employers having contractual terms which allow them to lay off an employee who is unable to work and/ or which grants an employer the right to withhold pay if they are unable to work.
In this case, Mr Pye had a sick note and a contractual right to sick pay. It is inadvisable to challenge the validity of a GP's fit note and withhold sick pay unless there is independent evidence which undermines the stated reasons given in the fit note or there is reason to believe the fit note is fake.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.