Ref: McC11065
Neutral Citation No: [2019] NICA 50
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Delivered: 02/10/2019
Between:
Appellant;
Respondent.
McCloskey LJ (delivering the judgment of the court)
Introduction
"(1) [He was] not medically suspended from work within the meaning of Article 96 of the Employment Rights (NI) Order 1996.
(2) The respondent made an unlawful deduction from the wages of Derek Marshall. The respondent is ordered to pay him the sum of £238."
The conjoined claim of a second claimant, Ian Falconer, was dismissed. There is no appeal before this court in his case. Nor is there any appeal by the Respondent.
Statement of Agreed Facts
(a) The Respondent has been employed by the Appellant as a paint specialist at the Appellant's plant since 07 November 1994.
(b) On 24 January 2018 a health surveillance assessment of the Respondent was carried out by an occupational health nurse contracted to the Appellant.
(c) On 25 January 2018 the nurse reported that the Respondent was "… fit for all aspects of his job apart from working at heights. I have advised him to see his GP and added him to the OHP list."
(d) On the same date in a discussion with the Respondent, his line manager observed that working at heights was an integral part of the Respondent's employment, advising him that there were no alternative vacancies and instructing him to leave work.
(e) The Respondent was in consequence absent from work from 13.00 hours on 25 January (a Thursday) to 18 February 2018 (a Monday).
(f) The Appellant classified the Respondent's absence from work as an unpaid half day "pass out" on 25 January 2018 and attracting contractual sick pay in respect of the period 26 January to 18 February 2018. During the first three days of the latter period, known as "waiting days", no contractual sick pay or statutory sick pay was paid to the Respondent.
(g) From 29 January to 18 February 2018 the Respondent received contractual sick pay equivalent to his full pay. (See infra).
(a) The Appellant at all material times considered the Respondent to be suffering from the "illness" of high blood pressure and that this rendered him unfit for his full range of duties.
(b) Having attended the surgery the previous day, on 26 January 2018 the Respondent was assessed by his General Medical Practitioner, who certified without qualification that he was not fit for work for a period of four weeks, beginning the previous day, by reason of "hypertension".
(c) On 15 February 2018 the General Practitioner further medically certified that the Respondent, having been absent from work due to "high blood pressure", was fit to return to work, his condition being "controlled with medication".
(d) On 20 February 2018 the occupational nurse engaged by the Appellant, noting that the Respondent's General Practitioner had assessed "sustained hypertension" following an initial 24 hour monitoring test and had prescribed appropriate medication, which continued, advised that he was "… fit for the full remit of his role as the high blood pressure is now adequately controlled and he is asymptomatic".
Relevant Statutory Provisions
"(1) An employer shall not make a deduction from wages of a worker employed by him unless-
(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or
(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.
(2) In this Article "relevant provision", in relation to a worker's contract, means a provision of the contract comprised-
(a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or
(b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.
(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.
(4) Paragraph (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.
(5) For the purposes of this Article a relevant provision of a worker's contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.
(6) For the purposes of this Article an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.
(7) This Article does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting "wages" within the meaning of this Part is not to be subject to a deduction at the instance of the employer."
"(1) An employee who is suspended from work by his employer on medical grounds is entitled to be paid by his employer remuneration while he is so suspended for a period not exceeding twenty-six weeks.
(2) For the purposes of this Part an employee is suspended from work on medical grounds if he is suspended from work in consequence of-
(a) a requirement imposed by or under any statutory provision, or
(b) a recommendation in a provision of a code of practice issued or approved under Article 18 of the Health and Safety at Work (Northern Ireland) Order 1978,
and the provision is for the time being specified in paragraph (3).
(3) The provisions referred to in paragraph (2) are-
Regulation 2 of the Manufacture and Decoration of Pottery Regulations SR (UK) 1913/2,
Regulation 25 of the Ionising Radiations Regulations (Northern Ireland) SR (NI) 2017/229,
Regulation 16 of the Control of Lead at Work Regulations (Northern Ireland) SR (NI) 1986/36,
Regulation 11 of the Control of Substances Hazardous to Health Regulations (Northern Ireland) SR (NI) 1995/51.
(4) The Department may by order add provisions to or remove provisions from the list of provisions specified in paragraph (3).
(5) For the purposes of this Part an employee shall be regarded as suspended from work on medical grounds only if and for so long as he-
(a) continues to be employed by his employer, but
(b) is not provided with work or does not perform the work he normally performed before the suspension."
Linked to Article 96 is section 151 of the Social Security Contributions and Benefits (NI) Act 1992 (the "1992 Act"):
"(1) Statutory sick pay shall not be payable for the first three qualifying days in any period of entitlement."
The concept of the "three waiting days" (see further infra) seems to derive from this statutory provision.
The Contract of Employment
"Statement of fitness for work …. illness at work …. Medical certificates …. sickness or injury …. non-medical reason …."
Also worthy of note is the statement:
"Company Sick Pay ("CSP") will only be paid in cases of absence due to illness, injury or disease."
"Statutory sick pay (SSP) will be paid for up to 28 weeks of sickness absence in accordance with the rules of SSP. The payment of SSP is treated in the same way as pay and is subject to PAYE and National Insurance Contributions ….
Company sick pay (CSP) will only be paid in cases of absence due to illness, injury or disease. To be eligible employees must have more than 12 months service. Payments will only be made to employees who have complied with absence control, absence notification and Occupational Health procedures …
Payments made under the scheme, where applicable, will be pro rata to full normal basic weekly earnings (excluding overtime and shift premiums). SSP will be offset against CSP ie the amount of CSP and SSP will not be greater than normal basic earnings …
The payment of CSP is treated in the same way as pay and is subject to PAYE and National Insurance Contributions …
No payment will be made for the first three days of absence (waiting days)."
There follows a short section which makes clear that payment is dependent upon the individual employee's service. Thus, for example, there will be no payment for those of less than 12 months service. In contrast, employees with more than 24 months service (such as the Respondent) have an entitlement to full pay for eight weeks, followed by half pay for eight weeks. Also to be noted is an appendix detailing types of absence which exclude an employee from the Sick Pay Scheme.
The Tribunal's Decision
"Monday 29 January 2018 - Wednesday 31 January 2018 were his three unpaid waiting days in line with the rules of the occupational sick pay policy and thereafter he received occupational sick pay at the rate of his full pay from Thursday 01 February to Thursday 15 February 2018 inclusive. He returned to work on his next scheduled work day being Monday 19 February 2018."
(From the above one deduces that Friday 26 January 2018 was not one of the Respondent's normal working days).
"… it was reasonable for the Respondent to conclude that there was a clear possibility of harm to the claimants if they had been permitted to continue to work at height, however modest that might have been."
and, further, that –
"… the circumstances of this case fall outside the scope of Article 96 of the 1996 Order."
the Tribunal then made this finding relating to deduction from wages:
"… the non-payment of the half day on 25 January 2017 and the first three days of sickness absence as 'waiting days' from Mr Marshall's pay were a deduction from wages."
"The situation in this case does not appear to the Tribunal to have been anticipated by the Respondent when the policy was drafted, and cannot in the view of the Tribunal be properly inferred from its contents."
There follows the conclusion:
"The Tribunal therefore concludes that it cannot properly be construed as part of [Mr Marshall's] contract. In the absence of any other implied [sic] or other consent on his part, the Tribunal concludes that it was done on both occasions (namely the unpaid half day on 25 January and the three waiting days deduction) without lawful authority, and each was an unlawful deduction for the purposes of Article 45. The Respondent is therefore ordered to pay to Mr Marshall the sum of £238, representing those 3.5 days net pay."
The Appeal
Consideration and Conclusions
Summary
Omnibus conclusion and Order