Commentary

(2) Is there an implied right to contractual sick pay?

Division BI Pay
| Commentary

(2) Is there an implied right to contractual sick pay?

| Commentary

(2)     Is there an implied right to contractual sick pay?

As noted above, entitlement to sick pay will often be covered by an express clause in the contract or referred to in the written statement of employment particulars. But what if the contract is silent on the point? What approach does a court or tribunal take? The question can be analysed in one of two ways, both of which lead to the conclusion that there is no general implied right to – or any presumption in favour of – contractual sick pay. As a result, whether such a term can be implied requires consideration of the particular contract in question.

The first approach, seen in some of the older cases, tends to focus on the nature of the consideration provided by the employee for his wages (see for example the judgment of Atkinson J in Petrie v MacFisheries Ltd [1940] 1 KB 258, [1939] 4 All ER 281, CA). Under this approach where the true consideration for the employee's wages is a willingness to work, then if the employee is prevented from working through some temporary illness or injury, he is nonetheless regarded as providing good consideration. As a result, subject to any agreement to the contrary, he is entitled to claim his wages

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