PayPerShop Forum

I wondered if anyone could give some guidance on the following scenario.

On Monday 25th February, an employee's husband calls in to say that his wife is at the hospital with her mother who is terminally ill. A later call confirms that the mother has died and the employee will be out for the rest of the week.

On Thursday 28th February, the employee turns up for work for one hour during which time we learn that the funeral will take place on 7th March, and goes off again.

On Friday 29th March we receive a Form Med3 stating that the employee should refrain from work from 28 February to 14th March with a diagnosis of bereavement.

The company's unwritten policy is to allow up to five days on full pay for bereavement but are wondering if bereavement can actually be classified as a sickness.

We know we have to pay SSP for the totality of the absence, but can we refuse to pay Occupational Sick Pay for the days in excess of 5 and would we expect the employee to be back in work on the 14th March or Monday 17th March (we don't work weekends).

Any thoughts would be gratefully received.

Jenny,

A bit of a difficult one, but it is important to remove the emotion from such a situation and concentrate on the professional implications.

The SSP rules state that an employee is absent for the purposes of SSP if they are suffering from some physical or mental disablement which prevents them from carrying out the work they would be expected to do under their contract.

The fact that a MED3 has been issued is irrelevant in this case as the above decision has still to be made. Most employers would, in fact, accept that a bereavement is a mental disablement such as to prevent work from being carried out, though I have met a lot of managers who disagree with that, including an old boss of mine who shall remain nameless!

So I agree with you Jenny that SSP would be due for the period covered by the certificate. As to whether the employer is liable for occupational sick pay as well really depends on the detailed wording of the terms and conditions of employment and just what they define as sickness for the purposes of OSP.

One other issue is whether the company has paid someone else in the past and inadvertently created a custom and practice.

If the T's & C's make reference to sickness being defined as a period of absence covered by a medical certificate like the MED3, some schemes actually say that, then you have no choice but to count the whole period as OSP simply because the MED3 has been issued. However, if the terms make a clear distinction between the two then I would suggest they are treated separately and stop payment once the 5 days special leave has expired. That is dependent, of course, on the employer making a final decision on whether or not bereavement is a sickness.

The devil, as usual, is in the detail.

Good luck.

Ian Whyteside

Thanks Ian,

That's more or less exactly what I thought you would say, I think we will end up paying in this case.
Jenny

Jenny,

I am interested by your comment that you think the employer will pay up in this case.

Why is that?

Is it because the employer has terms and conditions which effectively accept something as sickness just because the Med3 has been issued, because your employer thinks it is the right thing to do, or something else?

It's not a problem, I'm just curious about the reasons when there is justification for keeping the absence as bereavement for OSP purposes.

Don't get me wrong, I'm not against an emotional decision in cases like this, it is a difficult situation after all but it would be worth knowing what the reasons behind it are.

Ian Whyteside

Ian

There's nothing emotional about it, quite the opposite in fact. We have recently allowed someone to have three months sick because their child had cancer (Stress & Anxiety), and another over one month because of violence at home (Domestic Stress).

I think they don't want to pay but will have to because I believe the two above create precedents.

This same employee had about a month off before Christmas (Stress related illness) and I personally think that the doctor could just as easily have stated "stress due to bereavement".

We are talking Green Book and Burgundy Book employees by the way and they seem to have a totally different view on life to those people who work in the normal world.

Jenny

Can I just ask, what are Green Book and Burgundy Book employees ?

Thanks

Paula

No problem Paula.

Burgundy Book employees are teachers - their terms and conditions are somewhat different to any I have seen before.

Green Book employees are usually council employees, school support staff and suchlike.

Both types of employee have quite generous sickness schemes.

Thanks Jenny!!

Ok, to anyone who might be following this one and wondering what the outcome was......

We have given 5 days paid compassionate leave and 9 days unpaid!

To say I nearly fell off my chair would be an understatement, but we have just recently had a change of management and I think they want to make a point

Hi Jenny,

That certainly is a bit of a stand but I cannot say I disagree with it. Special leave for bereavement is a very difficult issue and just about every employer has a different approach. I just hope that this one person is not aware of the rules applied in previous cases.

I used to work in local government and whilst many of the bosses favourites (in accountancy) got oodles of time off even when their dog died I got none to help deal with my fathers death, the boss (accountancy of course) made me take annual leave!

As an aside, the Burgundy book used to be a different colour in England & Wales up to a few years but was, and I think still is, the Blue book in Scotland. We had the Purple book before the Green book was introduced, but that was White in Scotland. And of course we had the White book and a Green book for manual workers and craftsmen and they were goodness knows what colours in Scotland, probably McKay tartan for all I know!

Oh, didn't we have fun back in the old days, all the colours of the rainbow and all paid for by the poor old taxpayer.

At least it's all so much simpler nowadays!!

Ian Whyteside

Interestingly while guidelines for the payment of SSP say that an employer can accept 'bereavement' as an illness / reason for absence on a self cert and a med cert from a doctor the BMA specifically states that doctors can not put 'bereavement' on a med cert. So you have SSP guidelines and the BMA at odds with each other!

So theoretically you could send the med cert back to the doc saying you can't accept the diagnosis as the BMA say 'bereavement' can't go on a med cert.

Back in the real world do you really want to upset the employee knowing full well that the doc is only going to change the wording on the med cert to something akin to 'stress reaction'. Pay the SSP and or OMP and through the situation over to HR to manage.

I just thought I would bring this post up to date.

We don't have an HR department and this was so "well" handled by the powers that be, that said employee took advice from the CAB, ACAS and her union. She then visited her doctor again and sent in a letter with a Med5 cert citing "stress" and demanding her money back.

So, yet another adjustment to make this month

Jenny,

I think you and I agree that this is a bit of game playing by someone who knows how to play the system and it must be infuriating to allow it to happen.

But lets be straight here, just because she has produced a letter proclaiming stress, long after the event, why is it that an adjustment has to be made now?

To me the original decision was fair and equitable and the new information is just that, new, it does not have to be applied to the old situation.

What is clear is that management is prepared to set a new standard for bereavement which pretty much looks like unlimited time off and what will happen is that your new managers will react by changing terms and conditions for everyone which will probably remove a right to time off simply because this one person may have abused the situation somewhat.

What ought to happen is to establish what is right as a standard and to stick to it, irrespective of the interference by CAB, ACAS and especially our wonderful, backward and completely puerile unions (i.e. they serve no useful purpose whatsoever, except maybe to make me laugh every time they open their mouths, its the only fun I get nowadays).

Whilst I fully appreciate the need to sort this out once and for all I have to say I am disappointed that they have chosen to do so by hanging out a white flag of surrender, it certainly does not make your life any easier.

Ian Whyteside

Ian

I totally agree with everything you have said.

However, giving said employee their payslip just as we were about to break up for two weeks holiday with a verbal "we have deducted 9 days" would probably have landed us in tribunal for illegal deductions from earnings.

That's how "well" it was handled.

They have written her a letter confirming that they have noticed that it wasn't the first time she has been off with "stress" though, so I suspect the next thing will be a capability issue...and I shouldn't be involved in that at all thankfully.

Jenny