This is always a tricky one. In an ideal world the employee would either have an explicit contractual term or there will be a company policy in place regulating their entitlement to sick pay e.g. employees may be entitled to 4 weeks’ sick pay per year. Where such a clause exists, all things being equal, the employer may cut sick pay after that designated period. But invariably, that’s not the case and this is one of those classic grey areas that keeps employment lawyers in business.

Even if such a term exists the company may not have enforced it previously.  Alternatively, the Company may have a more ambiguous sick pay clause which states that sick pay “is at the discretion of the company”. While this type of clause provides employers with a certain amount of flexibility depending on the situation, over time it can raise more questions than it answers. For instance, has the employer exercised that discretion or have they paid sick pay to anyone who went on sick leave? If they’ve paid sick pay, have they paid it for the duration of the illness, regardless of how long the employee was out sick? Have they previously tried to cut sick pay for anyone? If a practice regarding sick pay is “so notorious, well known and acquiesced in” within the company it may be deemed to be an implied contractual term.

In that case, it may be very difficult for an employer to tell a particular employee that despite how everyone prior to that person was treated, this time their sick pay is going to be cut off after a certain period, or not paid at all. In such a case the employee could claim that an implied term of their contract is being breached and, in extreme cases, could potentially seek an injunction to restrain their employer from cutting their sick pay. Depending on the circumstances, issues of penalisation or victimisation may also arise.