Public sector employers who were faced with a mass walkout recently may be wondering how this affects the pay of their employees. Reassuringly, employees are not entitled to be paid for the time they spend on strike. The right to pay depends on the employee being ready and willing to work and this is clearly not the case when he/she is on strike. Any deductions made to pay in this regard are not protected under the Employment Rights Act 1996 therefore do not require agreement by the employee – the pay can simply be deducted.
The situation is less clear cut where the employee partially performs his duties i.e. still comes to work but does not do all of his/her duties. In this case it is imperative upon the employer to display their refusal to accept partial performance. If this is done, the employee is not entitled to be paid for any work done. If the employer accepts partial performance, they cannot refuse to pay the employee. It must be made clear to the employee from the start that the employer does not accept the partial performance. Even if this does happen, the employer must maintain this stance and ensure he does not do anything which disentitles them from asserting that the employee is entitled to be paid.
If an employee becomes sick during the strike, he/she is not entitled to receive Statutory Sick Pay (SSP) (provided he would have met the other eligibility requirements but for the strike) unless he/she can show that:
• he/she has no direct involvement in the dispute; and
• he/she did not take part in it at any time up to and including the first day of sickness.
If an employee is off sick already when the strike begins, again he/she will only be able to continue receiving SSP as long as he/she can meet the above two requirements regarding involvement in the dispute.
The payment of SSP for any further linked period of sickness (i.e. within 56 days of their return to work after the dispute) will also be affected by the strike.
Where enhanced sick pay is paid, employers should check contracts of employment regarding entitlement during a strike, however, in the absence of specific provision, medical evidence of the sickness should be requested if payment is to be considered.
Some employers will feel the fall out from the strike even though their employees are not taking part in it. With schools closing for the day, thousands of parents will be forced to find alternative childcare arrangements. Many will have booked a day of annual leave; however, some may have no other option but to look after them themselves. Despite David Cameron’s urge for parents to take their children into work on strike day, the likely consequence would be the employee having to take the day off. Generally, employees will look to rely on the time off for dependants’ provision permitted in the Employment Rights Act 1996. Time off for this reason is unpaid.
Employees on approved annual leave on the day of the strike should be paid as normal.
If you have any queries regarding strike action, then please call our 24 Hour Advice Service on 0844 892 2772.