Work related question regarding ESA

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i am currently on long term sickness leave due to breast cancer, mastectomy, chemotherapy and subsequent radiotherapy next year.

I work for a local authority and have done for 2 years. I was being paid full pay for 4 months SSP and half pay for 4 months. My SSP had now finished and my final half pay will finish in December.

i made an application for new style esa via DWP online, and submitted my SSP 1 which was sent to me via my employer. DWP have stated that my application will be processed in January at some point. I am currently not in receipt of esa and will need to be successful in necessary criteria to be successful in my application.

in my November pay, my employer made a deduction of £70.67 for ESA payment. I queried this with payroll stating that I am not currently in receipt of esa having not been assessed as yet. My employer informed me they take took the payment on the ass I will be successful in my esa claim. They also informed me a deduction will be made in my December pay also; this is to ensure that I have no overpayments.
I have challenged this via HR stating that it does not seem right or legal that an assumption can be made on whether my esa claim is successful and monies can be taken out of my salary based on such assumption. My employer stated in previous years employees had received esa and SSP and overpayments had occurred which is why they take money to prevent this.

my employer states under terms and conditions of service they are required to deduct a sum equivalent to my full entitlement of esa on receipt of any DWP outcome decision, whether successful or not, I will need to provide the outcome letter to them. Obviously they cannot take money if my claim Is unsuccessful but in the meantime they can and are. I have checked my contract of employment and cannot see this written.

I still don’t get this? It doesn’t feel right. Can you explain? It feels like an audacity to take money based only on an assumption I will be awarded.

Polly - Macmillan 4 months ago

Hello Deedee313

Thank you for your question.

My name is Polly and I am a work support adviser on the Macmillan support line. I am sorry to read about the stressful situation you are in at work.

Deductions from pay are governed by section 13 Employment Rights act 1996. This states that an employer is only entitled to make deductions from a worker's pay in the following circumstances.

The employer has a statutory duty or authority to do so- for example tax and National Insurance
One or more of written terms of the employment contract allow the deduction
The employer has the prior written consent of the worker to make the deduction and they tell the worker before the deduction is made

If these conditions are not met, then this could be an unauthorised deduction of wages.

Under Section 14 the employer has a right to make deduction from wages if there has been an overpayment of wages.

I suggest you check both your employment contract and the contractual sick pay policy to work out what the employer is allowed to do and the details of how they calculate sick pay entitlement. Please ask your manager to provide a copy.

It is unusual for an employer to deduct a notional amount for ESA from the wage because entitlement is dictated by strict national insurance contribution conditions (please speak to our Welfare rights team about this ). New Style ESA is generally paid on top of occupational sick pay and no deduction is made from wages.

If you are entitled to new style ESA then it will link up to your statutory sick pay so the DWP should backdate the claim to the date SSP ended .

To Sum up- It will only be possible to lawfully withhold contractual sick pay in circumstances set out in your contract or the contractual sickness policy, or where you have agreed in writing. Otherwise, the employer's action in withholding sick pay will amount to an unlawful deduction from wages .

I suggest that you speak to your union because this policy has an impact on the wider work force and you will receive support if you decide to take this further.

When you are in dispute with your employer the first step is to try and resolve the problem informally. If this does not work then you need to raise a formal grievance.

Please have a look at the following resources:

Citizens Advice

Advice Now

In addition it is also worth familiarising yourself with your protections from disability discrimination because cancer is a recognised disability under the Equality Act 2010 or the disability Discrimination Act 1995 if you live in Northern Ireland.

Please see: Your Rights at work when you are affected by Cancer

Polly

Work Support Advisor

Remember you can also speak with the Macmillan Support Line team of experts. Phone free on 0808 808 0000 (7 days a week, 8am-8pm) or by email

Deedee313 4 months ago in reply to Polly - Macmillan

Thank you for the reply , very helpful & I will explore your suggestions

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Work related question regarding ESA