No Work, No Pay?

Is an employee who cannot get to work because of weather, delayed holiday flights or imprisonment  entitled to be paid? Who bears the loss? Employer or employee?

Common sense suggests an employer is not bound to pay an employee who does not turn up for work (subject to special statutory and any contractual provisions for sickness). But the law is not so simple.

Harvey on Industrial Relations and Employment Law Volume 1 Section (1) para 14(a) states:

“a worker who is ready and willing to perform his contract but is unable to do so by reason of sickness, injury or other unavoidable impediment, may if the contract continues and subject to its terms, still be able to claim his wages thereunder.”

So is a sick employee entitled to pay? No, according to the Court of Appeal in Mears v Safecar Security Ltd [1982] ICR 626. The court refused to imply into the employment contract a term that the employer would pay the employee during the employee’s sick absence.

Is an imprisoned employee entitled to pay? No, according to the Employment Appeal Tribunal’s recent decision in Burns v Santander UK plc UK EAT/0500/10/RM. Custody is, apparently, an “avoidable impediment”.

So it may be that all “impediments” which prevent an employee working disentitle him to pay. Employers will certainly hope so.

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