I have a situation whereby a female employee has been signed off for 2 weeks with work-related stress due to workload. Our sick pay policy is up to 5 days normal pay (dependent on length of service) thereafter SSP, however, the line manager would like to pay full sick pay due to the nature of the absence. Another employee, who is pregnant and has been suffering with migraines and high blood pressure due to the pregnancy, so far has been on unpaid sick. Our policy states the following in regard to sickness:

    ‘The company retains absolute discretion to make additional or further payments in relation to sickness absences, depending on the circumstances. Each decision will be made on the instant facts and circumstances. No decision in one case shall be taken as setting a precedent for another.’

Is that enough to justify why we are paying one employee and not the other?

Peter replies:

In terms of protected characteristics, it is not likely to be unlawful sex discrimination as both are females – but if there is another male employee who has been paid additional sick pay then it could be. Sex discrimination is not the point however as it could very easily be seen as unlawful discrimination on the grounds of pregnancy, which is a protected characteristic.

There will need to be something else which can explain the apparently discriminatory nature of your application of an otherwise reasonable discretion clause. In the absence of long service or previous history, then prioritising Work Related Stress over pregnancy looks discriminatory.

Unless you genuinely believe that the person with stress is off because of bad things happening at work, which you should have dealt with, there is no need to panic about a fit note saying that it is work related stress. Stress is not a recognised mental health condition, never mind a disability and the wording work-related just means that this is what the doctor has probably been told rather than accurately and professionally diagnosed.

Discretion is a mixed blessing as an employer. It is good because it allows you to deal with people as individuals rather than just applying rules. On the other hand, it does mean that any decision can potentially be seen as discriminatory and may just appear to be unfair so we would normally advise that there is some more written down about the factors that would influence discretion, such as the nature of the illness or injury, length of service, to name but two. Tribunals and higher courts are aware of the unequal bargaining power between an employer and an employee, so have sought to place limits on the discretionary powers of employers to ensure that such powers cannot be abused. On the other hand, they are wary of intervening in employers’ decisions unless the decision has been made arbitrarily, capriciously, perversely or irrationally or in bad faith. To that list one can add in a discriminatory fashion.

Exercising discretion is an integral part of being a manager. Discretion relates to the freedom to make decisions within the constraints of your authority and applying caution in what you say or do. Specifically, it depends on the task at hand and using personal judgment to arrive at appropriate decisions. Failure to properly use discretion can adversely impact on employee morale and engagement.

If the decision not to pay cannot be readily defended, then it would be better to pay the pregnant woman on this occasion, assuming she is aware of the apparent disparity. Waiting for a grievance is probably not wise, as it just draws attention to your ‘oversight’.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.