Industrial Tribunals Northern Ireland Decisions

INDUSTRIAL TRIBUNALS

CASE REF NO: 2146/04

CLAIMANT: Dominic O'Doherty

RESPONDENT: Seagate Technology (Ireland) Ltd

DECISION

The unanimous decision of the Industrial Tribunal is that the claimant did not suffer unlawful deductions from wages and his claim is therefore dismissed.

Constitution of Tribunal:

Chairman Ms E McCaffrey

Members Mr R McKnight

Mr J Patterson

Appearances:

The Claimant was represented by Mr Miceal Canavan of McGuinness Canavan Solicitors.

The Respondent was represented by Mr Peter Bloch of the Engineering Employers Federation.

THE ISSUE

1. The issue for the Tribunal to decide was whether the Claimant suffered unlawful deductions from his wages when the Respondent withheld contractual sick pay in April 2004 on the basis that the Claimant had failed to notify the Respondent on a daily basis that he was ill and unable to work as required by his terms and conditions of employment.

THE FACTS

2. The tribunal makes the following finding of relevant facts. The claimant was employed by the respondent company as an equipment technician and had worked in this capacity since March 1997.
3. In 2002 the Claimant along with all other current employees was advised of changes in the Respondent's sickness notification procedure. A presentation was made regarding the changes and the Claimant was supplied with copy of the revised terms and conditions and a company handbook.
4. In December 2004, over the Christmas period, the Claimant was off sick for some days and failed to advise his employer of his incapacity on a daily basis. His Supervisor Conor O'Donnell spoke to him about this on 4th January 2005 and advised him that he must in future follow the correct procedure. The claimant was reminded he needed to inform his manager at the start of each shift if he was unable to work. This was recorded in a note sent by Mr O'Donnell to the Human Resource Department. The Company policy, as set out in the claimant's terms and conditions of employment, is that an employee must notify his Manager if he is unable to attend work within 30 minutes of the start of the shift. It was not sufficient to advise Human Resources Department which is open during office hours only, because the factory works 24 hours a day. It is important that the Manager be advised promptly as possible if someone is sick so that they can make alternative arrangements to cover work.
5. The Claimant was working the nightshift on the night of the 16^th April. He had an argument with his Manager. Sometime after this he developed what he described as "a thumping headache". He subsequently spoke to his Manager by phone and advised him that he was going off sick with a thumping headache. The claimant did not come to work for the next 3 nights when he was rostered to work. The Claimant worked a pattern of 4 nights off and 3 nights on, or 4 nights on and 3 nights off, working a 48 hour week.
6. The claimant did not make any contact with his manager regarding his absence from work the next day or any other day of that shift block, claiming he was ill and could not face speaking to his manager. However, he did attend a pre-arranged meeting about a grievance he had regarding a fellow employee at the company's premises on 19^th April. The Claimant obtained a sick line from his Doctor which he signed and dated on the 20^th April 2005 and he left the sick line with the Human Resource Department of Seagate on the 22^nd April 2005. This sick line was for 4 weeks. The sick line was for "stress at work". The Tribunal finds as a fact that in fact the claimant had forgotten that he was obliged to notify his manager of his continuing sick leave as required by his contract.
7. The Claimant's Manager telephoned him on the 27^th April to point out to him that he had failed to notify the manager on a daily basis of his absence as required by the sick leave policy. The Manager told the Claimant that he would withhold his contractual sick pay for the days that he had failed to notify the Manager of his absence, namely from 17^th to 19^th April and from 24^th to 27^th April 2005. Thereafter the Claimant telephoned daily to advise the Manager of his continuing incapacity during the remaining period when he was off sick due to stress.

DECISION

8. The issue for the Tribunal to decide is whether the Respondent unlawfully deducted contractual sick pay from the Claimant's pay for the period from the 17^th to 27^th April or whether the deduction was lawfully made. It is clear from the relevant statutory provision, namely Article 45 of the Employment Rights (Northern Ireland) Order 1996 that the employer is not entitled to make a deduction from wages of a worker employed by him unless either that deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract or the worker has previously signified in writing his agreement or consent to the making of the deduction.
9. Article 45(2) makes it clear that for the purposes of the legislation, "relevant provision" means provision of the worker's contract either comprised in one or more 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 is one or more terms of the contract which has been notified to the worker in writing previously. It was conceded by Mr Canavan for the Claimant that the relevant provision of the employer's sickness absence notification procedure entitled the employer to make deductions from contractual sick pay if the employee failed to notify them of his absence on sick leave in accordance with the appropriate procedure. Mr Canavan argued however that it was not reasonable in all the circumstances for the employer to make the deduction of contractual sick pay in this case.
10. The outstanding issue therefore for the Tribunal to decide is whether or not the employer's behaviour in making the deductions of contractual sick pay from the employee's pay was reasonable. The Tribunal was referred to the relevant provisions of Harvey on Industrial Relations Law and in particular to the characteristics of the employer/employee relationship. The Tribunal believes however that the reasonableness or otherwise of the employer's conduct – and indeed the reasonableness of the employee's conduct - emerges from the facts found. The Claimant had been advised of the appropriate sickness notification procedure in a presentation given to him and to other members of staff in August 2002 when the revised guidelines were distributed to staff. He had received a copy of these guidelines and the staff hand book but on his own admission had not read them. Just a few months before the incident which gave rise to this claim, the Claimant had been off sick and had failed to notify his Manager of his absence. At that time the Manager did not withhold his contractual sick pay, but advised the Claimant of the correct procedure and reminded him that it was his responsibility to contact his Manager if he (the Claimant) was off on sick leave.
11. In spite of all of this the Claimant went off on the night of 16^th April asserting that his Manager should know, because he had gone home with a headache, that he was then "booked off sick" for the next few days. The Tribunal does not find the Claimant's account or the construction which he put on his actions credible or appropriate. The Claimant asserted in his evidence to the Tribunal that he simply was not well enough to phone his Manager and could not phone the particular Manager in question because of the fact that they had an argument on the 16^th April and he could not face telephoning him. On cross examination however, he agreed that once he knew the correct procedure he had followed it. This is more consistent with what the Claimant stated in his claim to the Industrial Tribunal when he wrote, "I was unaware of such a requirement (the requirement to notify his Employer on a daily basis of his continuing sickness) and I had submitted a sick line from my General Practitioner confirming by unavailability for work due to illness".
12. Mr Canavan submitted on the Claimant's behalf that the Employer should have taken account of the fact that the Claimant was off due to a stress related illness and should in fact have exercised its discretion in the Claimant's favour and due to the fact have allowed him his full contractual pay during this period.
13. The Respondent's representative Mr Bloch pointed to the fact that the Claimant had been notified of the correct procedure and given copies of it, that he had been reminded of the procedure in January 2004 and that he had then gone off on sick leave in the middle of April 2004 and had neglected to notify his Manager of his absence. Mr Bloch asserted that it was not the stress of his illness or the fact that the Claimant could not face speaking to his Manager which was the problem. He said that in fact the Claimant's IT1 was correct; he was unaware of the procedure and did not bother to check up or to follow the correct procedure. In such circumstances, when the employer was trying to organise work for several hundred employees and needed Managers of each shift to be notified of any absences due to sick leave, it was perfectly reasonable on the employer's part to insist that the manager be notified direct. It was not sufficient, as the claimant sought to argue, that the Human Resources Dept had been notified by the provision of a four week sick line. On occasion employees were able to return to work early and it was therefore legitimate to ask them to keep in touch with the employer regarding their absence from work.
14. It is the finding of the Tribunal in all the circumstances that the employer did not act unlawfully in refusing to pay the claimant contractual sick for the days in April 2004 when the claimant was off sick, but had failed to notify his manager of his absence in accordance with established procedure. The claimant had been notified of the procedure both verbally and in writing and had been reminded of it just a few months before the disputed period of sick leave. Indeed on that occasion the employer did not exercise its right to deduct contractual sick pay, but reminded the claimant that he must follow procedure in future.
15. It is clear to the Tribunal that the Claimant, in spite of all the information and advice given to him by the Respondent, simply failed to follow the appropriate procedure. The procedure was laid down for good commercial and industrial reasons by the employer and it is not unreasonable on their part to expect the employees to co-operate and to assist them by complying with the procedure. Accordingly the Tribunal's decision is that the respondent did not act unlawfully in withholding contractual sick pay from the claimant in this case and the claim will be dismissed.

Chairman:

Date and place of hearing: 19 September 2005, Londonderry.

Date decision recorded in register and issued to parties: