Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 60/06

CLAIMANT: Patrick McKernan

RESPONDENT: Royal Mail

DECISION

The decision of the tribunal is that the claimant had not suffered an unlawful deduction of wages contrary to Article 45(1) of the Employment Rights (Northern Ireland) Order 1996.

Constitution of Tribunal:

Chairman: Ms Bell (Chairman sitting alone)

Appearances:

The claimant was represented by Mr Owens of J G O'Hare & Co., Solicitors.

The respondent was represented by Mr O'Reilly, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

1. The claimant claimed £290.00 for wages unpaid for the period 3-10 October 2005 during which he was off work by reason of sickness certified by sick lines.
2. The respondent resisted the claimant's entitlement to wages under its Sick Pay Scheme on the basis that the claimant was certified fit for work following examination by an Occupational Health Physician on 20 September 2005, that he was advised on 28 September 2005 that he was expected to return to work on 3 October 2005 but the claimant responded this was not acceptable due to family commitments but he would return on 17 October 2005 whereupon the claimant was advised on 3 October 2005 if he failed to return by 11 October his sick pay would be withdrawn.

ISSUES

3. The issue for the tribunal was whether the claimant suffered an unlawful deduction from wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996.

EVIDENCE

4. The tribunal heard evidence from the claimant, and Ms Tabb on behalf of the respondent, considered the contents of the claimant's claim, the respondent's response, and a bundle of agreed documentation.

FINDINGS OF FACT

5. The claimant is employed by the respondent as a postman, his continuous employment began on 7 August 2000. Following his engagement as a postman the claimant was given by the respondent a statement of terms and conditions of employment, paragraph 12 of which states:-

"If you are absent through sickness or injury you may be entitled to sick pay for the period of absence details of which may be inspected on request to your Personnel Section via your Line Manager. There are also procedures relating to sickness which may be inspected on request to your Personnel Section via your Line Manager".

The respondent's Sick Pay and Sick Leave - Rates and Conditions sets out at paragraph 4.4 conditions on which sick pay is paid, and that entitlement to sick pay is always subject to strict observance of conditions set out therein including:-

"(d) The Business must be satisfied that an employee's absence is necessary and due to genuine illness".

6. The claimant was requested by the respondent to attend an assessment on 20 September 2005 with an Occupational Physician to assess his fitness to return to work following a period of absence from work due to recurring back pain.

The claimant attended an assessment on 20 September 2005 with Doctor Glasgow an Occupational Physician employed by Altos Origin IT Services UK Limited. Following the assessment Doctor Glasgow advised the respondent by written report and verbally that he considered the claimant capable of returning to work immediately on a rehabilitation programme to run over an eight week period.

7. By letter of 28 September 2005, the respondent wrote to the claimant and outlined to him the proposals as recommended by Doctor Glasgow, for his return to work as from the week commencing 3 October 2005. The claimant was asked to complete and return to the respondent a reply slip to advise of his intentions.

Prior to the assessment by Doctor Glasgow of the claimant on 28 September 2005, the claimant had submitted to the respondent a sick line from his GP certifying him as unfit for work until 17 October 2005.

The claimant following receipt of the respondent's letter of 28 September 2005, completed a reply slip indicating that the respondent's return to work proposals were acceptable to him and that he would be returning to work on 10 October 2005.

The claimant subsequently completed a reply slip stating that the return to work proposals were not acceptable to him but he would be returning to work on 17 October 2005 as the return to work proposals were not acceptable to him for the following reasons:-

"Week 1 and 2 starting time not suitable family commitments at home".

In response to the claimant's reply slip the respondent sent a letter dated 3 October 2005 to the claimant inviting him to return to work on 6 October 2005 on a rehabilitation programme. The respondent advised the claimant "that part of the terms and conditions of receiving Royal Mail Sick Pay state:-

"The Business must be satisfied that your absence is necessary", and as the Occupational Physician has advised me that you are now fit to return to work, the Business cannot satisfy itself that your absence is necessary.

I must therefore advise you that a failure to return to work on Wednesday 05 October 2005 may result in the Royal Mail element of your sick pay being withdrawn."

The claimant was advised of his right of appeal against the suitability of the work being offered by the respondent but no appeal request was received from him.

The claimant did not return to work on 5 October 2005.

By letter dated 6 October 2005 the respondent advised the claimant that the aspect of Royal Mail Sick Pay would stop from 3 October 2005 but he would continue to receive statutory sick pay provided medical certificates were produced on time.

Payment for 3 October - 10 October 2005 was made by the respondent to the claimant on 7 October 2005 in the sum of £0.43 being his statutory sick pay entitlement only.

THE LAW

8. (i) Article 45(1) of the Employment Rights (Northern Ireland) Order 1996

provides that:-

"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 had previously signified in writing his agreement or consent

to the making of the deduction.

(ii) 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.

(iii) 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".

THE TRIBUNAL'S CONCLUSION

9. The tribunal is satisfied that despite the claimant having been certified by his GP as unfit to work until 17^th October that the claimant was in fact fit to return to work under a rehabilitation scheme as recommended at the time of his assessment by Doctor Glasgow on 20 September 2005 , this assessment having taken place at a later date than the issue of the GP certificate and supported further by Doctor Glasgow's role as an Occupational Physician advising on employee's current capacity for employment, and the claimant's response to the respondent's letter of 29 September 2005 that the proposal for him to return on 3 October 2005 was not acceptable to him due to 'family commitments at home'.

The tribunal is satisfied that the non-payment of sick pay to the claimant was authorised by the respondent's sick pay and sick leave – rates and conditions incorporated into the claimant's statement of terms and conditions and although the claimant gave evidence that he did not receive a copy of this document he was clearly advised ,prior to the deduction in question on 7 October 2005, of the existence and effect of the condition therein such that if he did not return to work on Wednesday 5 October 2005 this might result in the Royal Mail element of his sick pay being withdrawn, the respondent having been advised by an Occupational Physician that the claimant was fit to return to work and not being able to satisfy itself that his absence was necessary, as is clearly substantiated by the documentary evidence produced. The tribunal is satisfied that the claimant accordingly has not suffered an unlawful deduction from wages.

Chairman:

Date and place of hearing: 26 May 2006, Belfast.

Date decision recorded in register and issued to parties: