The judgment of the Tribunal is as follows: Complaint of unlawful deduction of wages contrary to section 13 of the Employment Rights Act 1996 and pursuant to section 23 of that Act[1]The claimant’s complaint of unlawful deduction of wages is well founded and succeeds[2]The respondent is ordered to pay the claimant the sum of £4,492.75 gross of tax and national insurance. The way in which this is calculated is set out in paragraph 62 below.[3]The claimant is responsible for paying any tax or National Insurance.
REASONS
[4]The claimant is employed by the respondent as a warehouse operative. His employment with the respondent was ongoing as at the date of the hearing of this case. His ET1 form states that he was employed with the respondent since 01 February 2007. Page 65 of the appeal bundle has a date of 20 July 2015. Nothing turns on this discrepancy.[5]The claimant presented a claim by his form ET1 dated 28 September 2025. In that form he ticked the boxes for being owed both “arrears of pay” and “other payments”. The way he put his claim in his form ET1 was like this: “In February 2025, I was signed off work by my doctor as medically unfit to work due to a diagnosed hernia, which caused severe and ongoing pain. My doctor provided continuous sick notes to confirm my condition and inability to perform my normal duties. Under the contractual sick pay policy, I am entitled to receive six months of full sick pay from Asda Stores Ltd. Asda Stores Ltd paid me full sick pay for four months of my absence. However, for the subsequent two months, I was only paid a reduced sum of approximately £500 per month, rather than the contractual full pay to which I am entitled. [paragraph about ACAS conciliation omitted – not relevant] My hernia condition has improved somewhat, but I continue to suffer periods of severe pain and am still awaiting surgery to address the condition fully. Despite my ongoing medical issues, I have returned to work out of financial necessity to support my wife and children. However, I remain unable to carry out my normal duties as I did before falling ill. I contend that Asda Stores Ltd has breached its contractual obligation to pay me six months of full sick pay. I am therefore seeking reimbursement of the outstanding two months’ full sick pay, which should have been paid in accordance with my contract of employment. I respectfully request that the Tribunal orders Asda Stores Ltd to: Pay the outstanding balance of my contractual sick pay for the two-month period in question.”
The Hearing
[6]I heard the case on 26 February 2026.[7]I should clarify out of courtesy that, although the claimant’s name is listed in the electronic case file as Said Fahim, at the start of the hearing it was clarified that the claimant’s correct name is Fahim Said Hamid (“Said” being his father’s name).[8]The claimant was not represented by a solicitor or barrister. At the start of the hearing, he had the assistance of a neighbour who helped him connect to the remote hearing via his telephone. It emerged that this was not purely for technical assistance, though. The claimant at various points in the hearing showed documents and a medication box to the camera and upon doing so it he stated that he could not read or write. I therefore allowed his neighbour to remain and at various times to assist in the capacity of a McKenzie Friend.[9]The respondent was represented by Mr Alexander MacMillan, a barrister. Mr MacMillan called two witnesses, Ms Michelle Tanner and Mr Owen Stone who both gave sworn oral evidence. The claimant gave oral sworn evidence.[10]The claimant was assisted throughout by a Dari interpreter, Mr Fahim Ahmad. The claimant confirmed at the start of the hearing that Dari was his native language and that he could fully understand the interpreter.[11]The respondent had prepared a trial bundle comprising 162 pages and a witness statement bundle comprising 15 pages. The witness statement bundle did not contain a witness statement from the claimant, and we established at the start of the hearing that he had not prepared one.[12]This was a final hearing of the case listed for one day. Due to the claimant being unfamiliar with proceedings like these and the need for an interpreter, there was insufficient time at the end of the day for me to give an oral judgment on the day. After evidence and submissions were heard, I indicated to the parties that I felt it would be unfair to rush a judgment in the very short time that remained in the hearing day, and that in order to allow adequate deliberation and thought before making a decision, I would reserve judgment. The issues for the Tribunal to decide[13]The claimant’s claim was brought pursuant to section 23 of the Employment Rights Act 1996 on the basis that the respondent failed to pay him contractual sick pay for 2 months out of a period of 6 months, to which he says he was contractually entitled. The claimant had also ticked “other payments” in his form ET1 and therefore the Tribunal explored in evidence whether he was alleging that any statutory sick pay (as opposed to contractual sick pay) had been withheld. It became clear during evidence that the respondent had not ceased payment of any statutory sick pay. The claimant also said in oral evidence and submissions that June and July 2025 were not the only occasions on which the respondent had deducted wages from him, but he was also clear that he was not seeking to claim for anything outside of the issue of contractual sick pay for June and July 2025.[14]The respondent accepted in evidence that they did not pay the claimant for contractual sick pay in June and July 2025.[15]Therefore, the respondent’s submission was that, given that the respondent accepted that a deduction was made, the issue for decision in this case was whether that deduction was of a type authorised by a provision of the contract between the claimant and the respondent, pursuant to section 14(4)(a) of the Employment Rights Act 1996. I agree that that is the relevant legal issue to be decided. Chronology of events[16]In my judgment it is useful in this case to set out a chronology of relevant events. In this “chronology of events” section I do not (save for as mentioned in paragraph 17 below) address any conflict of evidence because the section is designed as an explanation of matters as they stand, as of record. References to page numbers, including numbers in square brackets, are to page numbers in the agreed final hearing bundle. The chronology is as follows:(a) On 02 February 2025 the claimant called in with cold and flu, stating that he was taking paracetamol and cold/flu remedies and that he would attend a depot visit on 11 February 2025 [91].(b) Due to miscommunication, he did not attend the depot visit and was told that he needed to attend for a depot visit on 14 February 2025 [91].(c) On 14 February he attended a depot visit, where he stated that he had been given antibiotics and an asthma pump by the GP, that he had another GP appointment on 17 February 2025, and that he would call on that date with an update from the GP and attend a depot visit on 20 February 2025 [91].(d) On 20 February 2025 he attended a welfare meeting, where he advised he was having x-rays and tests for pneumonia, was on very strong antibiotics and had been signed off from work by his GP until 9 March 2025 [91].(e) By telephone on 03 March 2025, he informed by telephone that he was still taking antibiotics and needed to return to his GP on 10 March, and that he would attend a depot visit on 06 March 2025 [91].(f) On 06 March 2025 when attending the depot visit he informed that he was still in pain, he had a GP appointment on 10 March 2025, his sick note ran out on 9 March 2025, he was still on antibiotics, he had breathing problems and chest and back problems, that his forthcoming GP appointment would determine his ability to carry out his job and his return to work date, and that he could call on the evening of 9 March to update as to the GP appointment outcome [90].(g) On 11 March 2025 he produced a further sick note for 4 weeks [90].(h) On 12 March he informed that he would have to undertake an MRI scan on the next day due to abdominal pain that would not go away, and that he had a further GP appointment on 14 March 2025. He also informed on this occasion that he needed transportation to site visits but was happy to attend them [90].(i) On 21 March 2025 (though on page 94 the hand-written record shows a date of “19th March”) he attended a depot meeting, informing that he had seen his GP for the test results, his chest and lungs were not causing him pain any more, his back was still infected and he had painkillers for that, he was still on antibiotics, he had to return for more tests in 2 weeks, and at present he was unable to carry out any warehouse role due to pain and the side effects of antibiotics [90].(j) On 01 April 2025 he attended for a depot meeting where the respondent’s objective was to fully understand the nature of his illness. Here he said that the chest and lung scans were inconclusive, that blood tests showed high blood sugar levels, that he was awaiting x-rays or scans on his lower back area, and that he was still taking antibiotics to clear his remaining pneumonia. Here he was told by the respondent that they were concerned that there was no return-to-work date to work towards and that if he were to fail to return to work after the end of the current sick note on 10 April 2025, he would have to attend a formal long term absence review [89].(k) On 09 April 2025 he sent in a further 4 week sick note stating abdominal pain / awaiting scan. Here he stated that “he would come back but GP says no”. He was told by the respondent that if he was feeling ready to return to work, he could be started off slowly on a phased return. The respondent also told him that they “need a clear diagnosis and also needed to be working towards a full return to work date” [89].(l) On 10 April 2025 he attended for a depot visit, reporting a continuing pain in his lower right side lower stomach and upper groin, that the area inside there was very hard and “incredibly painful when he needs toilet”, that he was awaiting a scan with no date set yet, and that the “GP will not guess at what it might be”. He reported that his breathing and coughing issues from pneumonia had cleared up but that he could not offer any return-to-work date because he “insists his GP instructs him not to return until his scan results have been diagnosed” [88].(m) On 24 April 2025 he reported no real change in the painful lump in the bottom of his stomach/top of groin area, that he had not had the scan date communicated yet, and that he still had 2 weeks left of his sick note.(n) On 01 May 2025 he attended a welfare meeting with Robert Webb (the respondent’s nightshift shift manager and Adebayo Ayodele (the respondent’s nightshift department manager) and Ammo Kallu who was the claimant’s GMB Union representative. The document at page 96 has it reported materially as follows which is supported to the same effect in handwritten attendance notes at page 95: (i) The claimant was still “in constant pain” but had “finished [his] course of antibiotics” and was “currently taking only paracetamol and another medication that [he] couldn’t remember”. He would send in a picture of the medication. (ii) He would “not be returning but obtaining another sick note”. (iii) He would only return to work once he had an MRI scan or the GP said he could. (iv) The scan would be on 07 June 2025 and fully intended to get another sick note for a further 4 weeks until the scan, and that he would wait for the scan results and for his GP to tell him that he could return to work.(o)01 May 2025 was the point at which Mr Webb of the respondent placed a contractual sick pay stoppage form in.(p) Page 95 also shows that at the meeting of 01 May 2025 the respondent offered the claimant “support to assist with rehabilitation with returning to work with light duties, ammeded [sic] hours, hygiene, load, flow?...if colleague feels better”.(q) On 12 May he met with Michelle Tanner of the respondent to discuss sickness and contractual sick pay. The note taker was Daniel Kingsland. The claimant’s Union representative Ammo Kallu was in attendance. The record of absence at page 88 says “have adjourned to make a decision[.] Will be stopping pay – letter sent 14/5/25”. At pages 99 to 101 is a handwritten record of that meeting. It records materially as follows: (i) The purpose of the meeting was to discuss the claimant’s absence and his contractual sick pay. (ii) The progression of his illnesses as put to him were “originally with cold and flu, I can see you were given antibiotics and asthma pump 20/2/25, you have test for pneumonia, that then became breathing issues / chest and back pain this then became abdominal pain, then you had a back infection”. (iii) His response was that he was due an ultrasound for a hernia, which was diagnosed and he may need an operation. (iv) He envisaged no return-to-work date because he was “always in pain taking tablets can’t stop”. (v) He handed up a sick note. (vi) He said: “I don’t have any painkillers but am taking Panadol and ibuprofen”. (vii) He would be back to work after the operation because then he should have no pain. (viii) Upon it being suggested to him that the respondent had colleagues in the past with hernias who worked until their operation, he said he could not do the same “because of the pain 5-6 hours no sleep 5 GP visits last week”. (ix) His Union representative clarified that the claimant had “finally got a diagnosis due to the language barrier with GP” and that the claimant’s inability to work could be due to the nature of the work. (x) Mis Tanner would adjourn the meeting to make a decision.(r) On 15 May 2025 [pages 101-103] Michelle Tanner of the respondent sent the claimant a letter that summarised the content of the 01 May meeting and gave her decision to stop his “company sick pay”. The reason given was that “In my opinion you are unreasonably refusing reasonable alternative duties to facilitate a return to work”.(s) On 26 May 2025 the claimant appealed by letter against Ms Tanner’s decision. In the letter notifying of the appeal [page 104] he said “my GP advice is I am unfit for work” and “I am still in lots of pain” and “I am following my GP advice, hence why I can’t return on alternative duties”.(t) The appeal hearing took place on 5 June 2025, heard by Mr Owen Stone of the respondent with the note taker being Judy Bundock of the respondent. Mr Ammo Kallu, the claimant’s Union representative, was in attendance. The appeal was refused. The letter notifying of the appeal result [pages 106-107] dated 10 June 2025 said relevantly as follows: (i) The claimant had explained in the appeal hearing that he was still in significant pain in his abdominal area which was one of the reasons why he claimed he was unable to return to work in any capacity. (ii) The claimant had reported in the appeal hearing that he was on amoxicillin and prednisolone and paracetamol. (iii) The claimant had wanted to demonstrate during the hearing that there were some movements that caused pain and he did a deep squat by way of demonstration of that. (iv) The other reason why the claimant had said he was unable to return to work was that he was following his GP’s advice. (v) The latest GP sick note did not carve out alternative options (namely, phased return, amended duties, altered hours and workplace adaptations) from the advice that the claimant was unfit to work. (vi) However, the claimant had told Mr Stone during the appeal hearing that he had not told his GP about the adjustments offered, which included the complete removal of heavy lifting and the opportunity to build up his hours over time. The opinion of Mr Stone was that “the advice of the GP is influenced by the information you provide, and to not share the flexible options on offer, it is not possible for the GP to make a proper assessment[. H]ad you shared that information, it’s possible that your GP would have supported an adjusted return to work, but that potential outcome has been removed because you chose not to share the necessary information with your GP”.(u) At a depot meeting on 16 July 2025, the claimant agreed to return to work on amended duties (partly picking and partly alternative duties) and his current sick note now stated this.(v) The claimant started work on 21 July 2025 on a rehabilitation plan that was for 4 weeks, with extension reviews on 22 August 2025 and 30 August 2025. These stated “hernia” as the reason for rehabilitation and referred repeatedly to awaiting an operation for this and to GP checks about it.[17]None of the above were disputed in oral evidence apart from what is recorded at paragraph 16(t)(vi) above. However, see paragraph 25 below for my reasons why I find against the claimant’s oral evidence that challenged what is recorded at paragraph 16(t)(vi) above. I therefore find all of the above as facts. Other findings of fact[18]In evidence in chief and in cross-examination, the claimant’s account was consistently that he was, at all times when he refused to return to work, on what he termed “strong medication” and in significant pain. He also claimed that he was on “very high doses of painkillers”. He showed to the camera a box of amoxicillin that he said he was still now taking. It was suggested to him in cross-examination that he was never prescribed pain medication by his GP. In response he said that he did not agree and showed the amoxicillin box again to the camera. I intervened to say that I did not consider that an entirely fair question given that the claimant is not medically qualified. On the basis of the documentary evidence and what the claimant said and did during the hearing, I find as a fact that he was prescribed amoxicillin and prednisolone, as well as taking paracetamol, Panadol and ibuprofen over the counter. I do not find as a fact whether or not those constitute “pain medication” because I am not medically qualified and there was no expert evidence before the Tribunal. I do find as a fact, though, that throughout the time when the claimant declined to return to work including on reduced duties, he was experiencing pain arising from medical conditions which he felt to be significant and entirely genuine. In the absence of expert medical evidence, I am unable to find as a fact which medical condition (whether a hernia or another condition) was the cause of that pain.[19]The oral evidence that the claimant gave about his hernia was as follows.• Its symptoms varied, with the swelling changing in size.• There were times when he could not sit or stand because of it and when it stopped him from bending, and at the time of the welfare meeting of 1 May 2025 it was so bad that he could not move around at all or stand up, with his wife having to hold his hand to aid him from getting up off the bed.• From 9 February 2025 he felt immediately that on lifting something, his body was telling him that he could not do it, and that caused him to return home shaking and sweating. He has not felt the same ever since he had the hernia.• The GP had told him that the hernia was a very serious problem because if it were protruding and got ruptured, he could bleed to death, and that this is the main reason why he had maintained to the respondent that he was following his GP’s advice in not returning to work for any duties at all.[20]It is not in dispute that on 12 May 2025, the claimant advised the respondent that he had been “diagnosed” with the need for an “ultrasound for hernia” and that he “may need an operation”. The ultrasound appointment letters at pages 136 and 141 of the appeal bundle corroborate this. I find as a fact that it is more likely than not that at the time the claimant refused to return to work on amended duties on 12 May 2025, he was experiencing symptoms arising from a hernia. In the absence of detailed medical evidence, I am unable to find as a fact how severe those symptoms were. I find as a fact that it is more likely than not that his GP advised him, at least after his MRI scan appointment of 07 June 2025, that he required surgery for a hernia.[21]It was entirely clear and consistent throughout the claimant’s evidence that, subjectively speaking from the claimant’s point of view, he was very worried about his health in 2025, he valued his health, and was uncomfortable with the risk of pushing or over-exerting himself whilst he had the abdominal condition, on one occasion saying “when I was unwell I cannot sacrifice myself for this company” and on another “my health is my wealth and if my health suffers nothing else works”. He was clear throughout his oral evidence that the reason that he was refusing to return to work on any duties was not only how he felt in himself subjectively but was also based on the GP’s instruction that he was not fit for work. This is also evident in the appeal bundle (see pages 88 [note of 01/05/2025], 89 [note of 10/04/2-25], 90 [note of 06/03/2025], 95, 96, 104 and 106). I therefore find this as a fact. Page 100 of the appeal bundle is also clear that he would be willing to return to work after a hernia operation because at that time he would have no pain.[22]It was clear from the claimant’s oral evidence in cross-examination that there came a stage when his GP had advised him that he could go back to work on light and/or amended duties. However, his oral evidence (both in examination in chief and in cross-examination) was inconsistent as to precisely when that was. At times he suggested it was shortly before he in fact returned to work in July 2025, or at some time after his contractual sick pay had been stopped. For example on one occasion he said, in response to a question asking whether the sick notes in the appeal bundle were the reasons why he could not do amended duties, “yes, the bulge was getting smaller, was subsiding and I had to sell my wife’s gold jewellery to pay for the rent, that is why I went to the doctor and said I have to return to work to pay for rent, and the doctor said yes you can go back to work now to work on light duties”, and on another occasion said that he had returned to work in July 2025 because “I had no other choice, I had to”. This is corroborated by a note in the sick leave record at page 87 of the appeal bundle dated 24 June 2025 that says “colleague has contacted Ammo to say he wants to return on alternative duties to pick – now he is not getting CSP”. But on another occasion, in response to the question whether it was around the time of the 01 May welfare meeting that he went to see the GP about a hernia, he said “the GP said the antibiotics were working, your bulge is subsiding, you can return to work but you still have to have an operation”. On yet another occasion, in answer to the question “what changed between May and July to enable you to do [light] duties if you had not yet had the operation”, his reply was “the medicine was working and the bulge was subsiding, I was becoming more active, swimming and doing sauna and looking after myself more, so the doctor said you can go back but you have to look after yourself”.[23]The written evidence about the advice given to the claimant by his GP in relation to the hernia, as it applied to alternative work duties, is as follows:(a) As reported on 09 April 2025 the advice was not to return at all because of abdominal pain and a pending scan (see paragraph 16(k) above), and the same on 10 April 2025 with the addition that return should not occur until a diagnosis had been made (see paragraph 16(l) above).(b) As reported by the claimant in his workplace appeal request letter of 26 May 2025 and repeated in the appeal hearing of 5 June 2025 (see paragraphs 16(s) and (t) above), the GP advice that the claimant purported to be following was that alternative duties were not suitable.(c) The third party evidence says via GP sick notes that on 10 March 2025 for a duration of one month the claimant was unfit to work because of “abdominal pain” [page 134], on 09 April 2025 he was not fit to work for a further month because of “abdominal pain awaiting scan” [page 135], on 08 May 2025 he was not fit for work because of “abdominal pain” for a further month [page 146], and on 09 June 2025 he was not fit to work for further month because of “abdominal pain” [page 147]. The need for an ultrasound scan is documented in the appeal bundle [pages 136-145] and supports the claimant’s evidence (both in the appeal bundle and his oral evidence at the Tribunal) that a scan was arranged for May 2025 then postponed to June 2025. None of the sick notes that appear in the appeal bundle specify an ability to return to work on lighter duties.(d) There are no sick notes in the appeal bundle post-dating the 09 June sick note at page 147. However, at page 109 in the claimant’s return-to-work interview letter dated 16 July 2025 it is stated “you informed me you now felt able to return to work on amended duties and your current sick note now states this”. Also at the hearing, the claimant showed to the camera a sick note covering 24 February 2026 to 23 April 2026 that quoted his ability to work on amended duties.[24]In my view, the claimant’s oral evidence as summarised above supports a conclusion that the date when his GP advised him that he could return to work on light duties post-dated the result of the internal appeal hearing of 5 June 2025. This is also what the third-party GP evidence indicates. I therefore find that as a fact.[25]However, a different consideration is why the GP’s advice did not authorise a return on light duties until July 2025. When it was put to the claimant in cross-examination that he had not told his GP on or around 1 May 2025 that he had been offered light duties, he first evaded the question, then denied the suggestion. When challenged that he had failed to explain to the GP the nature of loading duties, he answered obliquely that “only when I was cleared by the GP did I return to work”. Finally, when it was put to him that the factor that had changed the GP’s advice was when, only in July 2025, the claimant had told the GP that he had been offered light duties, again he answered obliquely that it was essential to listen to the GP’s professional opinion. All of this is in stark contrast to the clarity of what is recorded (purportedly as reported by the claimant) at page 107 of the bundle as quoted at paragraph 16(t)(vi)] above, and as corroborated by paragraph 16 of the witness statement of Mr Owen Stone of the respondent, namely that as at the date of the internal appeal hearing of 5 June 2025 the claimant had not yet told his GP about any of the workplace adjustments he had been offered. On the basis of the evasive oral evidence of the claimant on this point, his oral evidence of financial hardship being the prompt for an approach to the GP to facilitate return to work (with the corroborating note at page 87 of the bundle), coupled with the fact that the claimant did not deny that upon return to work in July 2025 he was performing alternative duties (both loading and cleaning) whilst still awaiting a hernia operation, along with the lack of medical evidence to substantiate any significant change in his medical condition between May and July 2025, I find as a fact that it is more likely than not that the evidence at page 107 and paragraph 16 of Mr Stone’s witness statement is correct. For that reason, I prefer that evidence over the oral evidence of the claimant at the tribunal hearing on this point.[26]The documentary evidence (see at pages 88, 95, 96, 97, 102, 106 and 107 of the appeal bundle) says that the claimant was since 01 May 2025 offered various adjustments to enable a phased return to work, such as reduced hours and lighter / skilled duties only (involving a removal of heavy lifting). In oral evidence the claimant did not deny that those were offered, nor that he performed those lighter duties upon return to work from 21 July 2025 under a 4-week rehabilitation plan. I therefore find this as a fact.[27]The claimant’s oral evidence in both evidence in chief and in cross-examination was clearly and consistently that at all times he felt, subjectively speaking, unable even to do light duties due to his health conditions. As a result of my findings at paragraphs 20 to 24 above, I find that even though he felt that after May 2025 he was improving, he felt unable to do light duties until at some point in July 2025 when he felt he had no choice but to return to work and for that reason sought the advice of his GP to clear him to do so. The evidence that the claimant gave in the hearing about the risk of the hernia rupturing and him bleeding to death seemed a somewhat hyperbolic and it appeared as though he may have been catastrophising things somewhat. However, I find that this did not detract from his fundamental point which was that he had been very ill in 2025 and as a result had experienced significant pain and distress.[28]The reasons why the respondent terminated the claimant’s contractual sick pay are not in dispute. The basis which the respondent used for termination was (as indicated in the appeal bundle and confirmed by Ms Tanner in oral evidence) its ALS Hourly Sick Pay Policy which at page 58 of the appeal bundle stated relevantly as follows: “Withholding / Extending Company Sick Pay Managers must not withhold Company Sick Pay, except in these circumstances: [other bullet points omitted because not relevant]• Unreasonably refusing reasonable alternative duties offered to facilitate their return to work.”[29]Relevantly, the sick pay policy also states as follows: “Medical evidence of sickness must be produced before the appropriate benefit can be paid. This will be in the form of a self-certificate and after the seventh day of continuous sickness absence, a Fit Note. [page 56] A Fit Note is necessary to confirm the eighth and any subsequent day of sickness absence from duty. [page 57] Under normal circumstances, a fit note will be accepted for the purpose of Company Sick Pay. If there is a question over the validity of any period of sickness, the manager must demonstrate reasonable grounds for this. The manager will fully investigate the circumstances. [page 58] Process to withhold The following points should be adhered to:• Discuss the circumstances with the Colleague• If appropriate, seek medical advice from a qualified health professional• Seek advice from the General Manager and People Manager. [page 58] Occupational Health Services (OHS) Asda uses Occupational Health in order to support and assist colleagues. The OHS offers:• Discussing colleague sickness with managers and advising on appropriate follow up action• Discussing medical problems with the colleague and advising options or specialist support• Assisting return to work and rehabilitation; providing support/advice in long-term sickness cases [bullet about promoting healthy lifestyles omitted – not relevant] OHS can assist in managing long-term sickness absence by way of medical reports and designing phased returns to work. [page 59]”[30]The reasoning behind Ms Tanner’s decision to stop the claimant’s contractual sick are encapsulated in her outcome letter at page 102-103 of the appeal bundle as follows: “Initially you went off with cold and flu, this then developed into Pneumonia. This then changed to breathing issues, chest and back pain. This then became abdominal pain. You explained that you have an ultrasound scan that was originally on 29th May 2025, this then got delayed until 7th June 2025. We talked about the fact that you have been off work for 3 months and your reason for absence has changed multiple times. I am aware that you have been offered various restrictions to allow you to return to work and you have refused these restrictions. You explained you are in a lot of pain and are taking paracetamol and ibuprofen. I explained previously we have been able to support many colleagues who have hernia's until they are able to have operations, and we then continue to support colleagues with rehabs back to work.”[31]I took Ms Tanner to page 87 of the bundle where it is stated that on 24 June 2025 the respondent deemed the claimant should not return until he was “capable of full duties as he has been off for over 6 months with pay with numerous issues. We have no idea still when he is fit for full duties or when a possible operation will be”. Whilst she said that was not her entry and that was not what had eventually happened in July 2025, she accepted that on its face the entry did read as if the claimant should not return to work until capable of full duties. As to the note on page 89 of the bundle from her colleague to the effect that “we need a clear diagnosis and also needed to be working towards a full return to work date”, her evidence was that she could not point to a place in the sick pay policy document that supported a need for a “clear diagnosis”, but that the standard procedure was that if a colleague had been off sick for over 12 weeks with no clear return-to-work date and no clear diagnosis, the company would ordinarily commence the long term sick procedure and policy but would not necessarily refuse sick leave. In essence, she was saying that there was a fork in the road, a choice between either finding a pathway back to work or following the long-term sick policy. She accepted that, as at 09 April 2025, the claimant did have abdominal pain and was awaiting a scan, as noted in the 09 April 2025 note at page 89. Her position in oral evidence was that as at the date of her decision to cease contractual sick pay, the claimant had a hernia but had recovered from his other ailments, was still taking paracetamol and ibuprofen and that her decision was “based on” the fact that the company had previously supported many other colleagues with hernias back to work on a phased return with amended duties. Asked by me whether it was as “fair summary” that she deemed the claimant appropriate for light duties with a hernia because that had been appropriate for other colleagues previously, she answered in the affirmative. She was clear in oral evidence that if the claimant had still had pneumonia in May 2025, she would have made the decision to continue his contractual sick pay.[32]The points listed in paragraph 30 above were also recorded in the meeting notes between pages 99 and 101 of the appeal bundle. On the basis of Ms Tanner’s oral evidence, I find that the key causative parts of Ms Tanner’s decision to rely on the relevant part of the respondent’s policy (see paragraph 28 above) were that:(a) The claimant had been off work for 3 months.(b) He had not offered any fixed or certain return-to-work date.(c) There was a desire on the part of the respondent to chart a path towards the claimant’s return to work, in order to avoid the long term sickness procedure.(d) The claimant had been offered various restrictions to allow him to return to work and he had refused those restrictions.(e) Although the respondent accepted that the claimant may have a hernia and was still awaiting scan results, the respondent treated the claimant in the same way as previous colleagues with hernias whom they had been able to support back to work with rehabilitation plans.[33]At page 63 of the appeal bundle is the respondent’s sickness absence poor attendance flowchart. This appears to be what Ms Tanner in oral evidence was referring to as the longterm sick policy. At the top of page 62 it summarises that six-month periods are reviewed on three occasions corresponding to the stage 1, stage 2 and stage 3 meetings set out in the flowchart that follows. At page 63 in the very first 2 boxes it states that a stage 1 meeting should be held, following which (unless no further action or nothing more than ongoing support is required) the employee is monitored for the next 6 months. It then talks of “sanctions (benefits)” being potentially reinstated before the stage 2 meeting if triggers are not breached and “Potential removal of Company Sick Pay” at the stage 2 meeting if triggers were breached after the stage 1 meeting. I find as a fact that, although the policy does not state that Ms Tanner was obliged to initiate the long-term sickness absence flowchart steps before ceasing the claimant’s contractual sick pay, that policy would have left it open to her to do so.[34]Ms Tanner in oral evidence stated that she followed the “process to withhold” procedure quoted at paragraph 29 above before deciding to withhold the claimant’s contractual sick pay. I disagree that she followed it entirely. I find as a fact that she followed the first and third bullets of it. However, I find as a fact that she did not consider whether it was “appropriate” to “seek medical advice from a qualified health professional” that was over and above the medical advice that the claimant had presented in the form of sick notes, before deciding to cease his contractual sick pay.[35]I also find as a fact that Ms Tanner did not take advantage of the in-house occupational health services at all, before making the decision to cease the claimant’s contractual sick pay. I find that the sick pay policy did not mandate her to do so. However, I find as a fact that before making her decision it would have been open to her to ask in-house occupational services to produce a medical report that assessed the claimant’s ability to work on amended duties, lighter duties and reduced hours.[36]The claimant appealed against the decision of Ms Tanner. Mr Owen Stone was the person hearing the appeal. Hiis witness statement says (see paragraph 9.3 thereof) that the third ground of the claimant’s appeal was that the claimant “was following the GP advice, which is why he was not able to return on alternative duties”. In oral evidence Mr Stone said that he disagreed with the truth of what was asserted in that third ground of appeal because it had transpired in the internal appeal hearing that options about adjustments to facilitate the claimant’s return to work had not been discussed with his GP. This accorded with what he had stated in the sixteenth paragraph of his witness statement and also in the final section (entitled “Your GP has advised that you are currently unfit to work, and you are choosing to follow this advice [; t]his is why you are unable to return on any alternative duties”) of his outcome letter at page 107 of the bundle. He said that, had it transpired that the claimant had told his GP as at the date of the appeal hearing about the return-to-work adjustments that the respondent had offered, he did not think his appeal decision would have been the same. I find as a fact that it is not factually correct to assert that the claimant had not been following his GP’s advice. I found as a fact above that he had been following the advice on the fit notes that appear in the appeal bundle, which stated on their face that he was not able to work in any capacity. However, I have found as a fact above that when seeking medical advice, the claimant had not told his GP about the adjustments that the respondent had offered by way of a phased return to work.
The relevant law
[37]Section 13 of the Employment Rights Act 1996 (ERA) provides as follows: 13 Right not to suffer unauthorised deductions (1) An employer shall not make a deduction from wages of a worker employed by him unless- (a) The deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) The worker has previously signified in writing his agreement or consent to the making of the deduction.[38]“Wages” is defined in section 27 of the ERA. In section 27(1) this includes “any fee, bonus, commission, holiday pay or other emolument referable to [a worker’s] employment, whether payable under his contract or otherwise”.[39]There is no suggestion in this case that the claimant was not a worker.[40]In this case there is also no suggestion that the contractual sick pay under the respondent’s contractual and policy arrangements did not constitute “wages” as defined in section 27(1)(a) of the ERA. It was admitted in oral evidence by the respondent that, unless the provision of the respondent’s ALS Hourly Sick Pay Policy quoted in paragraph 28 above applied, the claimant was entitled to 26 weeks of company (i.e. contractual) sick pay.[41]The respondent accepted in closing submissions that a deduction of the claimant’s wages was made in the form of the stoppage of contractual sick pay. He therefore submitted that the legal issue to be decided was whether that deduction was of a type authorised by a provision of the contract between the claimant and the respondent. I agree. The question is therefore whether any case law assists us in relation to the nature of the legal test to be applied in determining that issue.[42]By way of reminder, the relevant provision of the contract between the claimant and the respondent is (as quoted in paragraph 28 above), “Managers must not withhold Company Sick Pay, except in these circumstances: [other bullet points omitted because not relevant]• Unreasonably refusing reasonable alternative duties offered to facilitate their return to work.”[43]The respondent submitted that the core legal issue was an assessment of “reasonableness” in the context of that contractual term. He pointed to the duty as set out in the case of Braganza v BP Shipping Ltd [2015] UKSC 17, [2015] 1 WLR 166. He also pointed out the case of Bradley v Abacus Land 2025 EWCA Civ 1308, which commented on the Braganza duty.[44]In the Braganza case, the general issue was what it meant to say that the decision of a contractual fact-finder had to be a reasonable one. The following principles emerged:(a) Contractual terms in which one party to the contract is given the power to exercise a discretion, or to form an opinion as to relevant facts, are extremely common. It is not for the courts to re-write the parties' bargain for them, still less to substitute themselves for the contractually agreed decision-maker. Nevertheless, the party who is charged with making decisions which affect the rights of both parties to the contract has a clear conflict of interest. That conflict is heightened where there is a significant imbalance of power between the contracting parties as there often will be in an employment contract. The courts have therefore sought to ensure that such contractual powers are not abused. They have done so by implying a term as to the manner in which such powers may be exercised, a term which may vary according to the terms of the contract and the context in which the decision- making power is given.(b) The primary decision-maker is the contracting party or the public authority. It is right, therefore, that the standard of review generally adopted by the courts to the decisions of a contracting party should be no more demanding than (but might be less demanding than) the standard of review adopted in the judicial review of administrative action. This would be a rationality test in which both limbs of the “Wednesbury unreasonableness" test (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) are considered. The first limb focuses on the decision-making process and whether the right matters had been taken into account. The second focuses on the outcome of the decision: whether, even though the right things had been taken into account, the result was so outrageous that no reasonable decision-maker could have reached the decision.(c) However, it is unnecessary to reach a final conclusion on the precise extent to which an implied contractual term may differ from the principles applicable to judicial review of administrative action. Given that the question may arise in so many different contractual contexts, it may well be that no precise answer can be given.(d) An employment contract is of a different character from an ordinary commercial contract. In that special context, any decision-making function entrusted to the employer has to be exercised in accordance with the implied obligation of trust and confidence. In this context it was for the employer to show that the decision which it reached was a reasonable decision in the sense which is required by the contract.[45]The Bradley case concerned the wording of contractual provisions and whether they conferred on a landlord the right in its discretion to designate items of expenditure as Residential Service Charge Items. It was reviewing the decision of the First Tier Tribunal (FTT) below. It established the following in relation to the case before it, on the facts:(a) Even if a contract confers an apparently unqualified discretion on one of the contracting parties, there are implicit constraints on the exercise of the discretion.(b) A decision-maker's discretion will be limited, as a matter of necessary implication, by concepts of honesty, good faith, and genuineness, and the need for the absence of arbitrariness, capriciousness, perversity and irrationality.(c) The principle endorsed and applied by the Braganza case was that the exercise of a contractual discretion is constrained by an implied term that the decision-making process be lawful and rational in the public law sense, that the decision is made rationally (as well as in good faith) and consistently with its contractual purpose; and that the result is not so outrageous that no reasonable decision-maker could have reached it. However, this is a rationality review, not the application of an objective test of reasonableness. This "rationality" test is in some respects analogous to that applicable in public law to judicial review of decisions by public bodies, but the Supreme Court did not suggest in Braganza that they were precisely the same.(d) But in applying the Braganza duty in a case like this, the starting point should be the wording of the contractual provisions. The contractual allocation of the power to make the decision has to be respected. So, there was no question of the FTT deciding the question for itself from scratch as if it were deciding "on entirely objective criteria". Rather, the function of the FTT is limited to deciding whether the landlord acted in breach of contract.(e) The requirement that the Landlord act reasonably does mean reasonably, and not just rationally. The question for the FTT was whether the Landlord acted in breach of contract. The Landlord will have acted in breach of contract if, and only if, it can be said to have acted unreasonably, or to have not exercised a reasonable discretion.(f) The fact that there were a range of possible views between which the landlord was entitled to choose indicated that the question was whether the Landlord's choice was outside the range of permissible decisions. A decision is a permissible one if it is one that a landlord acting reasonably could reach. Or to put it negatively, the landlord's decision will be flawed only if it is one that no reasonable landlord could have reached.(g) Therefore, in a case like this the Braganza debate about whether the FTT is to apply a rationality test or a test of objective reasonableness a useful one in practice was not helpful. Instead, in a case like this the role of the FTT is limited to deciding whether a landlord has acted in breach of contract; that a landlord will only have acted in breach of contract if the decision it made was not one open to it in the circumstances; and that where the lease requires the landlord to act reasonably or exercise a reasonable discretion, that will only be so if the decision is one that no reasonable landlord could have reached.[46]Finally, the respondent drew my attention to several cases regarding fit notes. One was Batman v London General Transport Services 2345291/12 which I have not been able to locate, which the respondent said is authority that employer should not question a GP’s medical judgment in a sick note unless there is some clear factual error on which that factual certificate is based. The second was the Employment Appeal Tribunal (EAT) case of Merseyrail Electrics vs Taylor 2002 EAT 0162/07, which I have reviewed. In the Merseyrail case, a contractual term permitted the employer to withhold sick pay if there was “any doubt” that employee’s absence was for reasons other than health. The EAT found that, on the facts of that case, in the absence of any contrary medical opinion being obtained by the employer, any “doubt” had been removed by sick certificates submitted by the employee.[47]In the Merseyrail case, the employer argued that the relevant contractual clause was subject only to an obligation on the employer not to act in bad faith or capriciously, to which one might add unreasonably in the sense of perversely. Counsel for the employer had referred to a line of authority, the most recent case being Commerzbank AG v Keen [2007] IRLR 132 court of appeal, in which the court referred to earlier first instance decisions concerning wholly discretionary bonus payments, for example Clark v BET Plc [1997] IRLR 348 and Clark v Nomura International Plc [2000] IRLR 766. The EAT found that those cases did not directly assist in construing the relevant provision in the case, where there was a qualification to any absolute discretion to pay sick pay (that is that sick pay could be withheld if there was any doubt that the absence was due to reasons other than health or personal accident preventing the employee from undertaking any duty for which they are competent to perform). The EAT found that the question was what effect the words, “If there is any doubt”, had on the undoubted discretion to pay sick pay. It found that “there should at least have been some medical investigation, and that had there been a medical investigation undertaken by the respondent, which put in doubt the opinion of the general practitioner, then the power to withhold sick pay under the relevant provision would have been made out”.[48]In Merseyrail, the EAT made some general observations about the significance of medical notes, citing the case of Teinaz v London Borough of Wandsworth [2002] IRLR 721. It said that in Teinaz, the thrust of the point was that in the absence of any contradictory medical evidence, a tribunal should not go behind what appears on the face of the medical certificate. In Merseyrail, the EAT said that principle applied equally in construing contractual terms. Discussion and conclusions – application of the law to the facts[49]In the case before us, the starting point is that under the respondent’s ALS Hourly Sick Pay Policy the respondent had a discretion to withhold contractual sick pay. That policy operated contractually between the claimant and the respondent. But the respondent’s discretion was not unlimited. It was qualified by the terms of the ALS Hourly Sick Pay Policy. Relevantly for this case, the respondent could only operate it to withhold sick pay from the claimant if he “unreasonably” refused alternative duties that the respondent offered to facilitate his return to work. The other potential reasons for withholding contractual sick pay under the policy are irrelevant to this case. It is accepted that the respondent did offer alternative duties to the claimant and that the claimant did refuse those. Therefore, the issue to adjudicate is whether the claimant’s refusal was “unreasonable”.[50]Mr MacMillan’s submission was that this is a case where the exercise of discretion attracts the Braganza duty, meaning that the evaluative judgments of Ms Tanner and Mr Stone must be evaluated in terms of whether their authority in making each of their decisions was exercised in a way that was outrageous, in that they were not the sort of decisions that any reasonable manager could have reached. He submitted that the Bradley case means that I as Tribunal Judge must not substitute my own objective view of fairness when deciding on whether Ms Tanner and Mr Stone’s decisions were Braganza compliant. I agree with Mr MacMillan’s submission that I must not substitute any objective view of my own, as to reasonableness. In my opinion, that much is crystal clear from the principles above that I have extracted from both Braganza and Bradley.[51]However, I do not agree with Mr MacMillan that it is helpful to be so rigidly prescriptive as to the reasonableness test to be applied, in the sense that unreasonableness must amount to something “outrageous”. I accept, and do not derogate from, the Bradley principle that, in principle, a breach of contract will only be made out if the decision made was not one open to the decision maker in the circumstances. In my judgment, that means “not one reasonably open to the decision maker in the circumstances”. But I prefer to formulate it in the Braganza context that it is for the respondent to show that the decision which it reached was a reasonable decision in the sense which is required by the contract. In my judgement, that “sense in which it is required by the contract” includes the whole context of the respondent’s ALS Hourly Sick Pay Policy, and the wider context of(i) how the claimant perceived his illnesses to be affecting him and(ii) the various choices that were open to the respondent in clarifying any doubt as to whether he was in fact fit for modified duties. I consider Merseyrail to be authority for the proposition that the purpose of the relevant terms of the contract, including its wider context, govern what “reasonableness” means in terms of what are the obligations of the employer and employee. In this connection I note what was said in Braganza, that an implied term may vary according to the terms of the contract and the context in which the decision-making power is given. As in Braganza, Bradley and Merseyrail, I do not think it helpful in this case to think in terms of strict public law reasonableness or rationality tests, or in terms of arbitrariness, capriciousness or perversity.[52]In my judgment, the decisions of Ms Tanner and Mr Stone must be evaluated in terms of the words of the ALS Hourly Sick Pay Policy set in its whole context, the beliefs and conduct of the claimant, and the conduct of the respondent. The words of the ALS Hourly Sick Pay Policy[53]The words to be examined are that (in this case) the discretion to withhold contractual sick pay does not operate at all unless(a) the claimant was offered alternative duties,(b) those duties were reasonable,(c) he refused them and(d) in so refusing them he acted unreasonably. There is no dispute that limbs (a) and (c) were satisfied. Mr MacMillan submits that in terms of limb (b), it was reasonable of Ms Tanner to make the decision to cease contractual sick pay because she considered the light nature of the alternative duties offered in light of the apparent lack of any prescribed pain medication. I respectfully disagree. I have found above that at all material times the claimant perceived and expressed to the respondent that he was in significant pain, which in my judgment was reasonable on his part because of the long running and evolving medical conditions he was experiencing. I have also found above that the key causative part of Ms Tanner’s reliance on the relevant part of the respondent’s policy related to a desire to chart a path back to work and the assumption that the claimant’s ability to work was the same as previous colleagues with hernias. On that basis, there was in my judgment no weighing in Ms Tanner’s mind of how the alternative duties might impact on the claimant’s individual condition which at the time the respondent accepted to be a likely hernia. Rather, there was simply an assumption made that he would be fit for light duties. The reasoning was focused on the respondent’s general and somewhat fixed approach, as opposed to on any individual or specific evaluation of the claimant’s actual capabilities in light of his presenting medical condition. I find that in the context of the employer’s duty of trust and confidence, Ms Tanner did not act as a reasonable manger would have in making that assumption and omitting to weigh competing priorities. In relation to limb (d), the same reasoning applies. There is no record in the minutes of the 12 May meeting nor in Ms Tanner’s decision letter that demonstrates an evaluation of the reasons that the claimant was putting forward for refusing alternative duties. Instead, there was a binary stance: that the claimant had refused alternative duties, whereas previous colleagues with hernias had not. Again, I find that in the context of the employer’s duty of trust and confidence, Ms Tanner did not act as a reasonable manger would have in adopting that binary approach. My conclusions in this regard do not rest only on the documentary evidence. Ms Tanner in oral evidence expressed that binary position when she was clear, candid and honest that, instead of her position having been that the claimant had medical conditions but despite those could carry out light duties, it was that his only remaining condition was a hernia and the company had supported in the past pre-operative colleagues with hernias back to work.[54]The question then arises whether the error of Ms Tanner was cured at appeal by Mr Stone. Taking limbs (b) and (d) mentioned in paragraph 53 above together, it is evident that Mr Stone’s approach and reasoning did not take the same binary approach that Ms Tanner had taken. Instead, Mr Stone did probe the question of pain as it related to the claimant’s capability to move and did probe whether in his opinion the claimant was reasonably relying on his GP’s advice in the context of what the claimant had told his GP and therefore how valid the GP’s advice was. However, for reasons that I come to below, in my judgment in making a decision without taking follow-up steps to check the reliability of the medical evidence before him, Mr Stone did not act as a reasonable manager would have. Therefore, although to an extent he corrected the error of Ms Tanner, he made further errors which in my judgment rendered his decision unreasonable in the circumstances. The wider context of the ALS Hourly Sick Pay Policy[55]The overarching purpose behind the respondent’s system of withholding contractual sick pay in their stated policy is that managers must not withhold it unless certain conditions apply. Therefore, there is a clear presumption, articulated in terms in the policy, in favour of the respondent having to discharge the burden of showing cause for withholding payment. Part of that context is that the policy is explicit that “if there is a question over the validity of any period of sickness, the manger must demonstrate reasonable grounds for this”, that as part of the process to withhold the respondent should “if appropriate, seek medical advice from a qualified professional” and that in-house occupational therapy services are available to “discuss medical problems with the colleague” and “manage longterm sickness by way of medical reports”. A further part of the wider picture is the existence of the respondent’s managing sickness absence flowchart which talks of removal of contractual sick pay in the context of formal 6-monthly monitoring procedures.[56]The wider context of the facts of this case as it applies to the respondent’s burden to show cause is in my judgment this: as regards the claimant’s conduct, the claimant at all times reported medical conditions and pain, he was at the time of both Ms Tanner and Mr Stone’s decisions still awaiting an MRI scan, and the medical certificates on their face gave him grounds for absence from work; and on the respondent’s side that questions arose as articulated in Mr Stone’s appeal outcome as to the validity of the claimant’s claims for unfitness, specifically as they related to alternative and lighter duties. I have found as a fact above that Ms Tanner did not seek further medical advice over and above what was on the face of the medical certificates, and that in respect she arguably did not wholly follow the company policy. In fact, in her outcome letter at page 102 of the appeal bundle, Ms Tanner wrote that one of the “purposes” of the 12 May meeting was to “discuss at length” “whether or not any further medical advice was required from a qualified medical professional”. In my judgment, she did not do that. Also in my judgment, Mr Stone perpetuated that error because he went on to consider the medical issues, but made a decision that was a quasi-medical decision without recourse to any “further medical advice”. Nobody from the respondent consulted in-house occupational therapy colleagues in order to resolve the fitness question that, clearly, had arisen. All of this is in the context that as early as 09 April 2025 the respondent was recognising a “need” for a “clear diagnosis”. In my judgment, this wider context weighed in favour of a need on the part of the respondent to take further steps, at least on 12 May 2025 and if not certainly at the internal appeal stage, to investigate objectively the claimant’s capability for adjusted, limited working. It would be wrong for me to say precisely what the respondent should have done because I recognise that I am not to substitute an objective replacement decision. However, the respondent’s policy itself suggests various possible steps (obtain an internal OH report, initiate the long-term sick pay procedure, request that the colleague impart further information to their GP). The respondent failed to take any such steps at all. For that reason, in my judgment the respondent failed to show contractual cause for withholding the claimant’s contractual sick pay. This is because in the wider context, the respondent failed to discharge the requirement that “if there is a question over the validity of any period of sickness, the manger must demonstrate reasonable grounds for this”. The claimant, at some time after his contractual sick pay had been stopped, himself took steps to seek alternative medical advice that was specific to ability to undertake alternative duties but did so out of a combination of financial desperation and gradually improving health. In my judgment, that burden, which eventually fell on the claimant, was the prior responsibility of the respondent under the terms of the sick pay policy, which the respondent failed to discharge. In my view, the approach that the respondent took was somewhat “closed” or “fixed”, to the extent that it could be fairly described as predetermined, thus unreasonable and unfair in the circumstances. In that sense, the overall approach taken by the respondent was in my view not the approach that a reasonable employer would have taken. The question of the validity of the sick note - application of the Merseyrail case[57]Mr MacMillan submitted that Mr Stone acted reasonably upon internal review, in taking into account that the claimant had not told his GP about the amended and lighter duties that had been offered. He pointed out that it was notable that Mr Stone had said in oral evidence that, had the claimant told his GP that he had been offered lighter duties and had the GP acting on that information still advised that the claimant was unfit for all work, his appeal decision might have been different. Mr MacMillan’s submission was that the legal authorities on employers’ ability to question GP fit notes were not absolute, and that an employer could lawfully look behind a GP sick note if there is some clear factual error on which the medical certificate is based.[58]I accept that the authorities about an employer’s ability to look behind GP sick notes do not say that there is an absolute prohibition on doing so. This is illustrated by Merseyrail where the principle enunciated is clear that an employer is able to take steps to rebut the contents of a medical certificate if doubt arises about it. For this reason, I do not think Mr MacMillan’s submission about “mistake of fact” assists because it was incumbent on the respondent to take steps to resolve any apparent mistake of fact before ceasing the contractual sick pay. The point in Merseyrail was that “there should at least be some medical investigation”. Merseyrail is clear that the same principle applies on construing contractual terms. In my judgment, although the factual matrix in Merseyrail differs slightly from the factual matrix here, in that the cause for initial absence in Merseyrail was different, the core principles are the same in both and to the extent this case is on all fours with Merseyrail. In both, the focus is on the contractual provisions of the sick pay policy and what those required. In both, the issue is that in accordance with the proper construction of the terms of the sick pay policy under investigation, when a doubt is raised about medical evidence it is for the employer to rebut that doubt via further investigation. For that reason, I am not able to accept Mr MacMillan’s submission that the medical certificates that the claimant relied on were based on a factual error. There was no error because the claimant was relying on what he reasonably perceived as his medical problem and was at no time advised by the respondent that he should clarify his amended duty offer to his GP. For the same core reason, I am unable to accept that Mr Stone’s reasoning in his internal appeal outcome letter (namely, that(a) the claimant’s medication was not determinative of sufficient pain to prevent lighter duties, that(b) his claimed pain levels had not warranted any medical intervention and that(c) it had not been possible for the claimant’s GP to make a proper assessment) was reasoning that a reasonable appeals manager would have adopted. In my judgment, Mr Stone’s oral evidence that he might have made a different decision had the claimant informed his GP of the lighter duties offered does not assist him but does the opposite. If Mr Stone accepts that there was doubt and he dismissed that doubt, he must also accept by logical extension that he did not follow up or try to resolve that doubt. In the context of the respondent’s sick pay policy as a whole, and the context of the escalating health conditions that the claimant had experienced over a significant period of time, the obligation was on Mr Stone in the Merseyrail sense to seek to resolve the doubt before contractual sick pay was removed.[59]For the reasons above, the claimant’s claim for unlawful deduction of wages is well founded and succeeds.
Remedy
[60]Pursuant to section 24(1)(a) of the Employment Rights Act 1996 the remedies are(a) a declaration and(b) an order to pay the amount of any deduction made in contravention of section 13 of that Act.[61]The declaration is that the respondent made an unlawful deduction of wages, in the form of contractual sick pay, which the claimant was properly owed under the terms of the respondent’s ALS Hourly Sick Pay Policy, between 14 May 2025 and 21 July 2025.[62]At the hearing (not yet having made a decision on liability) I asked the respondent’s representative how much they said the amount of the deduction would be, if the claimant were to be successful. The respondent’s representative gave a figure of £4,192.75 calculated as follows:(a) Gross hourly rate of £16.35 multiplied by 40 contractual hours per week = £654.(b) Amount of weeks deducted = 9.(c) Total amount deducted = £654 x 9 = £5,886.(d) Amount already paid = £1,393.25.(e) Total gross amount payable on success = £5,886 - £1,393.25 = £4,492.75.[63]The claimant agreed with the sum immediately above. Approved by: