24

Firstly, for reference, this is all in the UK, so UK law applies. Here, sickness is not payable unless stipulated by contract, but many employers will offer up to a set number of sick days on full pay.

Now the situation itself: I work in a professional, well-paid role for a software development company, and as a small company our contract stipulate that A) We're not paid for overtime (at least reasonable overtime), and B) We are only paid a statutory amount for sick leave, which kicks in after 4 days of time off.

Because, as a small company just getting on to it's feet, we end up doing a fair amount of overtime in our roles, and management have, in return, always overlooked short periods of sick leave, on the assumption that we basically make the time up at other times.

I have, in this year, done enough overtime unpaid to amount to 2 weeks extra work, so their deal is good for them.

Last month, I took a few days off sick, which should have been paid in full, as per our arrangement. Instead, I've been paid minus the sick days. When I questioned this, I was told that we don't pay sick leave, and we don't pay overtime, nor count it against other leave. This came from the manager above my manager, who normally sorts this out for us.

A few important points:

  • Contractually, the company has acted within the wording of the contract
  • But, they've broken a verbal agreement between the employees and management
  • In the past they have honoured this agreement, setting a precedent

I could take legal action because although the contract states that sick pay is unpaid, the practice has always been to pay it - under UK law this makes it arguable at the least.

My question is, how to deal with this? Is it best to continue trying to negotiate, should I just consult my solicitor, or should I consider leaving the company (something I've considered before anyway).

I'd be interested to hear people's opinions on this. I'm more interested in the diplomacy of the situation, rather than the legal side - I know my legal options.

Some additional information:

I just found out, upon reviewing my contract, that whilst the boss claims they don't pay overtime, the contract actually doesn't say that overtime is unpaid. Originally, I took their word for this, but it turns out that what they say, and the contract wording is different.

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    It sounds like they are within the law and within the contract. I don't see where you have any "traction" for a solicitor to use, if you pursued it. – Wesley Long Nov 4 '15 at 12:21
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    It could be that they honored the agreement in the past because they could (i.e., they had the cash flow to do it) and now they can't (they no longer have the cash flow to do it). If I were you, I wouldn't worry too much about what just happened and be more concerned about what could happen in the future. Are more cutbacks coming? Is this lack of cash flow a short term thing or is it a glimpse of the future? Knowing this would help me answer whether or not I would leave. FWIW, I personally wouldn't pursue legal action. And I would personally self insure against future sick leave w/o pay. – mikeazo Nov 4 '15 at 12:35
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    You have no chance of winning a court case. You could take out sickness insurance against being unable to work. – TheMathemagician Nov 4 '15 at 14:29
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    Hey guys, I agree that pursuing a court case would be pointless, although one thing worth knowing is that "accepted practice" is a factor in UK employment law. I only know this because I've had a case before in which it was a factor, but the long and short of it is that if an employer behaves consistently one way (or if they behave consistently one way with other employees) then that can in the right circumstances become binding. As you can imagine though, it's a difficult point to argue, although I have successfully before. – Owen C. Jones Nov 4 '15 at 15:17
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    Take your sicktime out of future overtime: stop doing overtime. – Pieter B Nov 4 '15 at 15:31
25

You have already attempted to negotiate and it didn't work. The reasons behind it like company cash flow issues don't really make a difference.

If you feel strongly enough about it, I would speak to your manager about it again, to reiterate the point that you want to get paid. If he/she values you enough they will try again.

If you don't get any joy in that direction then if it was me I'd start looking for another job. This is only if I still felt strongly on the matter. Because what seems terrible today quite often fades into unimportance tomorrow.

I get the impression that there may be more to it. If a couple of days sick leave are frustrating you to the point of contemplating legal action, it might be the straw that broke the camels back rather than a standalone problem. Usually when it gets to that point it's a good idea to start looking at moving on a bit more seriously. Being happy with your workplace is important. As is having a manager who accomplishes what YOU want on the rare occasions you ask him/her to.

As to whether or not to take legal action, I don't want to give advice on that, there's too many factors involved. I'll go as far as to say that unless it's a recurring issue, a couple of days pay is probably not worth the grief.

  • 2
    Thanks for your input, much appreciated. You're right about there being some other factors, and this maybe a straw that broke the camel's back situation - but largely it's that the amount I'm short is actually quite large: 13% of my total pay, for a small amount of sick leave. I like the team I work with, but I'm having trouble reconciling myself with accepting upper management who would behave like this. I'll take what you've said into account though, everything is useful. – Owen C. Jones Nov 4 '15 at 15:06
  • You were sick for a few days and lost 13% of your total pay? – mikeazo Nov 4 '15 at 15:27
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    @mikeazo 13% is roughly 3 sickdays – Pieter B Nov 4 '15 at 15:33
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    It must be 13% of the normal amount of pay for a month, as opposed to the normal amount for a week or a year. The phrase "total pay" wasn't clear about the time frame for the normal earnings. A 31-day month less eight weekend days is 23 days. 3/23 = 0.130... – Todd Wilcox Nov 4 '15 at 18:33
15

I appreciate where you're coming from. I'm reminded of the time a client had a problem and I ended up working until 5:00 in the morning to get it fixed. I worked 8 am to 5 am without even breaking for lunch, 21 straight hours. Then I went home to get a few hours sleep and some food and came back at 11:00 am. And my boss's boss yelled at me for coming in late. I thought maybe he didn't know I'd worked all night so I tried to explain this to him, and he replied that that was irrelevant, I was expected to be at work on time every day.

I am not a lawyer and I know little about UK law. But I'd guess that bringing a lawsuit over this wouldn't be worth the time and trouble. Here in the U.S. anyway, to pursue this you'd pay more to a lawyer than the amount in dispute. If you won the court might possibly rule that the other side has to pay your legal expenses.

It's not at all clear you'd win. In the U.S., a written contract almost always supersedes any verbal agreement, because it's way easier to prove exactly what is in a written contract -- produce the piece of paper in court -- then to prove what somebody said.

The situation here seems to be that the contract says that they are not obligated to pay sick time, but sometimes they went beyond what they are required to do, but in this case they want to stick to the letter of the agreement. It's hard to argue that because someone did you a favor in the past, that this makes them legally required to perform similar favors for you in the future. Like, last month Bob let me borrow his car. I asked again this month and he said no, so I'm suing him. I realize that's not how you see it, but I suspect that's how the company sees it.

As I see it, you have x realistic choices:

  1. Bring a lawsuit. As I said above, I don't this is worth the effort.

  2. Adjust your work patterns to adapt to the situation. If they're not going to pay you for overtime and they're not going to pay you for sick time, then don't work overtime. If the boss asks you to work overtime, say, "Sorry, if the company is going to be hard-nosed about sick time, then I'm going to be hard-nosed about overtime." Take this too far and you're going to create a hostile environment where you'll never advance in this company, maybe even get fired. Personally, though, my willingness to sacrifice for the company has often depended on how much the company does for me. I'll do more for a company where it's noticed and results in pay raises or other consideration than for a company where they take whatever you give and return nothing.

  3. Quit and get another job. The question to ask yourself there is: Is this a big enough issue to quit over? If this is your only complaint about the company and otherwise it's the most wonderful job you ever had, I'd say probably not worth quitting over. If this is one of many things about the company that suck, maybe it's the last straw.

  4. Put up with it. The flip side to number 2. Every job has good points and bad points. How often are you sick? Are you paid enough to make up for it? Like, if your total pay for the year after subtracting for these unpaid sick days is still more than you could make anywhere else, it's still a good deal.

If you're considering drastic action -- lawsuits or quitting -- I'd take a couple of days before doing anything. Maybe after you get over the anger of the moment, it won't seem like such a big deal. Or maybe it still will.

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    @Jay So .. what happened with that whole screaming boss situation? – Celos Nov 4 '15 at 16:09
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    I agree with number 2 but I wouldn't come flat out and say what you would say. That will certainly create a hostile atmosphere. I would simply stop working overtime. If asked then tell them you have other plans or you have to watch the kids or something like that. If pushed then you could make your point, but once again not in the way you said to say it. This works for me, but in my case I simply have my personal opinion that my salary is based on 40 hours with rare overtime. Thus, I work overtime 3 or 4 times a year at most but nothing more unless I'm paid more. – Dunk Nov 4 '15 at 19:51
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    If they're not going to pay you for overtime and they're not going to pay you for sick time, then don't work overtime. I can't recommend this approach enough, especially if they're being picky about your other non-PTO. – grfrazee Nov 4 '15 at 20:29
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    @Jay unrelated comparison is unrelated. – njzk2 Nov 5 '15 at 14:41
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    The lesson from the screaming boss scenario, is don't stay any later at work, than the latest you can leave and have a meal and a sleep, and get back for 8am. That is, you "should" have dropped the client in it somewhere between 10pm and midnight and walked away. Punctuality has been explicitly stated to be more important than client needs. Except that the boss doesn't want that either: actually he wants the physically impossible and therefore will never be satisfied in life. Stupid people who make stupid demands get stupid results. – Steve Jessop Nov 13 '15 at 3:06
8

Start looking for a new job

Paying merely statutory sick pay might be acceptable if you were working a minimum wage job where you have no skills and no bargaining power; it is absolutely not acceptable when you're a highly skilled programmer. I have never seen a programming job in the UK that didn't meet such a basic standard.

Go somewhere that treats it's staff better.

6

I certainly think it's worth at least talking to your manager (or your manager's manager), if only to get some clarification on the situation. Clearly explain that this unofficial policy has been upheld in the past, and you were operating under that assumption when taking sick leave now. Ask them for a one-time exception to the rule, with the understanding that from this point forward only the official policies will stand. If they say no, then let it be. There's no point in getting a solicitor involved when they clearly have the right.

It is also important to ask why this verbal policy is no longer being upheld. It could be cash flow, that even higher management found out and didn't like it, or any of other reasons. It sounds like the reason you are the most unhappy is that you feel you have been mislead, so communication and understanding are key here.

If you aren't satisfied with the answer you get and are still not happy with the situation, then maybe this is the signal to start looking for a new job. You said you've considered it before, so I'm guessing you have other reasons for leaving as well. If you do come to this decision, just make sure you have a new job in hand before you give notice.

  • Thanks David, much appreciated, I think you're right. Like I said to Kilisi's comment, you're not wrong about there being some other factors at play, and I think your idea that upper management found out and didn't like the policy is very possibly a factor. I'll consider everything you've said whilst deciding what to do. – Owen C. Jones Nov 4 '15 at 15:09

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