Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 417/15

 

 

 

CLAIMANT: Christine McInerney

 

 

RESPONDENT: Armagh City, Banbridge and Craigavon Borough Council

 

 

 

DECISION

The claimant is not contractually entitled to her full week's pay during a phased returned to work and accordingly, she has not suffered unlawful deductions of wages. The claimant's claim is therefore dismissed.

 

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone): Employment Judge McCaffrey

 

 

Appearances:

 

The claimant was represented by Mrs Florence Smith of Donnelly and Kinder Solicitors.

 

The respondent was represented by Mr Conor Hamill, Barrister-at-Law instructed by Arthur Cox Solicitors.

 

ISSUES

 

1. The claimant's claim was that she had suffered unauthorised deductions from her wages regarding payments made to her during a phased return to work following illness. It was agreed at a Case Management Discussion held on 18 May 2015 that the main issue between the parties related to the interpretation of paragraph 20.1(a) of the respondent's Managing Attendance Policy dated April 2014 ("MAP 2014") and the NJC "Green Book", in relation to interpretation of the phrase "normal pay" during a phased return to work.

 

THE FACTS

 

2. This was a case where the facts of what had occurred were not in dispute: the main issue was in relation to the interpretation to be given to the relevant extracts from the respondent's Managing Attendance Policy and the NJC Green Book. I heard evidence from the claimant, from her union representative Ronald Conn, from Niamh Shannon, the HR/Learning and Development manager of the respondent and from Elaine Adamson, Senior Payroll Officer of the respondent. On the basis of the evidence heard I make the following findings of relevant facts.

 

3. The claimant has been employed by the respondent since May 2010 as a Recycling Inspector. She was off work for a long period of illness and returned to work on a phased return on 5 May 2014. She was then off work again due to a further unrelated health issue from 21 July 2014 until she returned to work on a phased basis on 29 September 2014. During her first absence the claimant had exhausted her entitlement to Occupational Sick Pay. She returned to work on a phased basis on 5 May 2014 and at that stage Mrs Adamson explained to her that she would only be paid for hours actually worked during the phased return. A copy of the letter concerned was shown to me. It was not disputed that this was in line with the policy on phased return which had been followed by the respondent prior to the introduction of MAP 2014 in April 2014.

 

4. When the claimant resumed work after her second absence in September 2014 she was then entitled to half pay under the respondent's Occupational Sick Pay Scheme. The claimant was paid a combination of her normal pay at 50% plus Statutory Sick Pay for her non-working days and normal full pay for the days she actually worked. It was the claimant's case however that she should have been entitled to her full pay for her normal contracted hours during her phased return under the provisions of the MAP 2014.

 

5. Absenteeism had been a concern for the respondent and it was Mrs Shannon's evidence that both management and the Elected Members of the respondent Council had sought to review the existing Attendance Management Policy (introduced in 2005) to identify and implement a more effective and robust system of absence management. The 2005 Policy had not specifically referred to phased returns to work. However, it was accepted by all parties that prior to the introduction of MAP 2014, phased returns had taken place and during phased returns employees were paid for the hours actually worked, but not their full week's pay.

 

6. Management had a number of discussions with the unions in relation to the proposed changes to the Managing Attendance Policy. Mrs Shannon produced copies of her notes of the meetings and a draft policy which she had annotated with any comments or proposed changes. The wording of the proposed draft policy in relation to phased returns was not altered during these consultations. It was her evidence that the main discussion focussed on the definition of "light duties". It was Mrs Shannon's undisputed evidence (which I accept) that there was no discussion around payment for phased returns and it was her understanding that the established practice of payment for hours actually worked would continue. She noted in her evidence that any proposal to pay employees remuneration above their entitlement for hours actually worked would have been a fundamental change to their existing contractual entitlement, and would have required approval from Elected Members. MAP 2014 became effective from 1 April 2014 and all staff received a letter from Brona Slevin, Director of Corporate Services advising them of the new policy and how it affected staff's responsibilities during a period of absence. The letter stressed the importance of staff reading the policy for themselves, but made no reference to any change in payment during a phased return.

 

7. Following the claimant's return to work after her first absence she raised a grievance on 16 July 2014 regarding her payment during her phased return to work. Mrs Shannon noted that this was the only grievance raised by any employee of the Council regarding payments during phased returns to work, despite the respondent having used this measure on many occasions and paying staff only for the hours actually worked. She also noted in her evidence to the tribunal that there had been phased returns which had occurred following the introduction of MAP 2014.

 

8. Mr Conn was clear that he had not had any previous experience of dealing with payment in relation to phased returns before the claimant's case had arisen. He confirmed that he had been involved in negotiations with management regarding MAP 2014 but when he was asked whether he had perceived that he had obtained a change regarding payment in April 2014, his evidence was that he had no specific recollection of this point. He also confirmed that he had not spoken to his members regarding any change in policy, but they had been told by letter to make themselves familiar with the policy. It was his position that the wording in the policy was very clear and that the definition of "normal pay" in the Green Book was also unambiguous.

 

9. MAP 2014 states the following in relation to phased returns to work:-

 

"20.1 Rehabilitative Care

 

A number of approaches to rehabilitated care are possible and their use reflects the Council's commitment to supporting employees who have been absent long-term. This may include:-

 

(a) Phased return to work - easing back into work with reduced hours. This can be facilitated by the Council and allows an employee to gradually increase their hours over a period of time. Occupational health advice may be taken to support this measure.

 

The maximum duration of a phased return to work would depend on the length of an employee's "normal" working week (their contracted hours) and would require a week on week increase on working hours up to an employee's contracted hours. During a phased return to work an employee would receive their normal salary/wages during the period. [My emphasis].

 

In the majority of cases 3-4 weeks would be considered the maximum duration for a phased return to work. Further advice and guidance should be obtained from Human Resources if the manager or employee believes this period is not sufficient, well in advance of this maximum being reached ..."

 

The NJC "Green Book" defines "normal pay" as follows:-

 

"7.11 Normal Pay

 

Normal pay includes all earnings that will be paid during a period of normal working, but excluding any payments not paid on a regular basis."

 

10. It was explained in the course of the evidence that this definition meant that any employee who was normally entitled to, say, a shift allowance would be entitled to receive that shift allowance as part of his or her normal pay but would not for example receive payments for overtime unless these were paid on a regular basis.

 

11. The proposed grievance meeting which was to take place in relation to the claimant's grievance did not actually occur because she was again on sick leave at the time when the grievance meeting was planned. Instead she received a reply dated 22 December 2014 from Marie Quinn the HR Advisor with the respondent, who advised that it was not considered appropriate to progress the grievance any further.

 

12. In her letter Ms Quinn set out the wording of MAP 2014 and the Green Book referred to above. Her letter continued:-

 

"In response to the points you have made I would advise that it is not accepted that you have been paid incorrectly during your phased return from sick leave. The pay you received comprised of normal pay for conditioned hours actually worked and normal Occupational Sick Pay entitlement, as appropriate, for conditioned hours not worked.

 

This is regarded as normal entitlement for staff on phased returns and it reflects long standing practice which is consistently and equally applied to all staff. I would add that to pay a member of staff their normal full pay for hours not worked, as well as for hours worked, during a phased return to work from sick leave would represent a complete and fundamental change to normal and accepted practice and policy as previously agreed with the trade unions (TUs) - this would be regarded as wholly inappropriate.

 

It is nevertheless acknowledged that the terminology relating to entitlement to pay during a phased return from sick leave which is used in the attendance management policy effective from April 2014, could perhaps be open to misinterpretation. For this reason it is intended to prepare and issue a clarification to the existing wording to remove any potential ambiguity. This action will be progressed at the earliest opportunity ...".

 

13. Mrs Shannon referred to a subsequent meeting which had taken place between the respondent's management and trade unions at the Joint Consultative Negotiating Committee on 13 January 2015 when pay during phased returns was raised. At that meeting the Director of Corporate Services (Ms Brona Slevin) raised the issue of pay on a phased return from sick leave in order to clarify it. Ms Quinn then explained that the wording of the Management Attendance Policy 2014, 'could perhaps be open to misinterpretation' and that clarification would be issued to remove any potential ambiguity. At that meeting, she restated that it was normal entitlement for staff on phased returns to receive pay for their hours worked and any Occupational Sick Pay entitlement to which they were entitled for conditioned hours not worked. At that meeting Mr Conn stated that it had been management's decision to introduce the new policy which included a revised paragraph regarding pay on a phased return from sick leave. It did not appear that there was any particular dispute at that meeting about what the previous practice had been. The minutes do not record either that the union representatives made a particular strong case that the policy in relation to pay on phased returns had been altered by negotiation or that they had understood that full pay was to be paid during phased returns from April 2014.

 

THE RELEVANT LAW AND SUBMISSIONS

 

14. The claimant claimed that she had suffered an unlawful deduction from wages contrary to Article 45(1) of the Employment Rights (Northern Ireland) Order 1996. The relevant parts of Article 45 are as follows:-

 

"45(1) An employer shall not make a deduction from wages from 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 of 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 had notified to the worker in writing on such an occasion.

 

(3) Where the total 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".

 

15. In this case there is no dispute between the parties that the claimant is entitled to a certain amount of pay during the phased return to work. The issue is whether she is entitled to be paid only for the hours actually worked or whether she is entitled to be paid a full week's pay during a phased return, even if she worked less than her contracted hours during that period.

 

16. The claimant's case is that the wording of MAP 2014 is clear and that she is entitled to be paid her "normal pay" which she understands to mean a full week's pay for each week of the phased return. Mrs Smith on her behalf alleged that the definition of "normal pay" in the NJC "Green Book", which indicates that normal pay includes all earnings that will be paid during a period of normal working should mean a week's pay as a week is "a period of normal working". The respondent disputed this, arguing instead that the claimant is entitled to be paid in accordance with established practice for the days actually worked during a phased return and not for any longer period. The issue therefore comes down to a question of the interpretation of the relevant part of MAP 2014 and whether it effected any change in the contractual arrangements which had previously existed between the respondent and its staff.

 

17. The leading case in relation to interpretation of contracts is the decision of the House of Lords Investors Compensation Scheme Limited v West Bromwich Building Society [1998] WLR 896 in which Lord Hoffman gave a comprehensive review of the law in relation to interpretation of contracts. His comments were not confined to employment contracts as the context of the case was a dispute between Investors Compensation Scheme and the Building Society. He summarised the applicable principles however at Page 912 of the judgment as follows:-

 

"But I think I should preface my explanation of my reasons with general remarks about the principles by which contractual documents are nowadays construed. I do not think that the fundamental change which have overtaken this branch of the law, particularly as a result of the speeches of Lord Wilberforce in Prenn v Simmonds [1971] 1WLR 381 ... and Reardon Smyth Line Ltd v Yngvar Hansen-Tangen [1976] 1WLR 989 is always sufficiently appreciated. The result has been, subject to one important exception, to assimilate the way in which such documents are interpreted by judges to the common sense principles by which any serious utterance would be interpreted in normal life. Almost all the old intellectual baggage of "legal" interpretation has been discarded. The principles may be summarised as follows:-

 

(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in a situation in which they were at the time of the contract.

 

(2) The background was famously referred to by Lord Wilberforce as "the matrix of fact" but this phase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably been available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.

 

(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs in the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.

 

(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: see Mannai Investments Co. Ltd v The Eagle Star Life Assurance Co. Ltd [1997] AC 749.

 

(5) The "rule" that words should be given their "natural and ordinary meaning" reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require Judges to attribute to the parties an intention in which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Naviera S.A. v Salen Rederierna A. B[1985] AC 191, 201:

 

"If detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common/sense"."

 

18. In Chartbrook Ltd v Persimmon Homes Ltd and Others [2009] UKHL 38 the House of Lords affirmed Lord Hoffman's ruling in the West Bromwich case at paragraphs 14 and 15 of its judgment as follows:-

 

"14. "There is no dispute that the principles on which a contract (or any other instrument or utterance) should be interpreted although summarised by the House of Lords in Investors Compensation Scheme Ltd v West Bromwich Building Societies [1998] 1WLI896, 912-913. They are well known and need not be repeated. It is agreed that the question is whether a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean. The House emphasised that "we do not easily accept that people have made linguistic mistakes, particularly in formal documents" ... but said that in some cases the context and background drove a court to the conclusion that "something must have gone wrong with the language". In such a case the law did not require a court to attribute to the parties an intention which a reasonable person would have not understood them to have had.

 

15. It clearly requires a strong case to persuade the Court that something must have gone wrong with the language and the Judge in the majority in the Court of Appeal did not think that such a case had been made out ... It is, I am afraid, not unusual that an interpretation which does not strike one person as sufficiently or irrational to justify a conclusion that there has been a linguistic mistake will seem commercially absurd to another ... The subtleties of language are such that no judicial guidelines or statements of principles can prevent it from sometimes happening. It is fortunately rare because most draughtsmen of formal documents think about what they are saying and use language with care. This appears to be an exceptional case in which the drafting was careless and no one noticed".

 

19. The House of Lords went on to state:-

 

"22. - In East v Pantiles (Plant Hire) Ltd [1982] EGLR 111, 263EG 61, Brightman J stated the conditions for what he called "correction of mistakes by construction":

 

"Two conditions must be satisfied: first there must be a clear mistake on the face of the instrument; secondly it must be clear what correction ought to be made in order to cure the mistake. If those conditions are satisfied then the correction is made as a matter of construction".

 

23. - Subject to qualifications both of which are explained by Carnwath LJ in his admirable judgment in KPMG LLP v Network Rail Infrastructure Ltd [EWCA Civ 363], I would accept this statement, which is in my opinion no more than an expression of the common sense of view that we do not readily accept that people have made mistakes in formal documents. The first qualification is that "correction of mistakes by construction" is not a separate branch of the law, a summary version of an action for rectification. As Carnwath LJ said (at p.1351, para. 50):

 

"Both in the judgment, and in the arguments before us, there was a tendency to deal separately with correction of mistakes and construing that paragraph "as it stands" as if they were distinct exercises. In my view they are simple aspects of the single task of interpreting the agreement in its context, in order to get as close as possible to the meaning which the parties intended".

 

24. - The second qualification concerns the words "on the face of the instrument". I agree with Carnwath LJ (at pp 1350-1351) that in deciding whether there is a clear mistake, the Court is not confined to reading the document without regard to its background or context. As the exercise is part of the single task of interpretation, the background and context must always be taken into consideration.

 

25. - What is clear from these cases is that there is not, so to speak a limit to the amount of red ink or verbal rearrangement or correction which the Court has allowed. All that is required is it should be clear that something has gone wrong with the language and that it should be clear what a reasonable person would have understood parties to have meant. In my opinion, both these requirements are satisfied".

 

20. The approach of the House of Lords has been affirmed in Autoclenz Ltd v Belcher and Others [2011] ICR 1157 UKSC. Lord Clarke in that case confirmed that the task of the court or tribunal is to decide what was actually agreed by the parties, and although that case dealt with an issue regarding the validity of contracts and whether the claimants were employees or not, it would appear that the approach taken in Autoclenz will be applicable in other disputes regarding the interpretation of written terms and conditions of employment ( Quantas Cabin Crew (UK) Ltd v Lopez and Another [2013] IRLR 4EAT). The test for what has been agreed between the parties is an objective one and there is little scope for the Court to set aside the written terms unless it is shown that the agreement was a sham.

 

21. Mrs Smith also argued that the Court may as a last resort apply the principle of "contra proferentem". In essence this doctrine can have at least two meanings. Firstly that the words of a contract are to be construed against the party who seeks to rely on them in order to diminish or exclude a basic obligation, or any duty which arises other than under the contract; or secondly, that the words are to be construed against the party who proposed them for inclusion in the contract. It is clear however that it is a rule of last rather than first resort and will only come into play where there is ambiguity in the sense that the answer cannot be derived with confidence from the application of the principles set out above.

 

22. Mr Hamill also referred me to the relevant extracts from Harvey on Industrial Relations and Employment Law in relation to variation of contract. It was his submission that the claimant was effectively alleging that there had been a variation of the contract in her favour by the respondent and that the respondent was effectively "stuck with it" even if the variation was inadvertent. Mr Hamill alleged that on the basis of Lee v GEC Plessey Telecommunications [1993] IRLR 383. In that case the employer had unilaterally withdrawn enhanced redundancy terms. The High Court ruled that terms incorporated into a contract as a result of a collective agreement (which was the case in Lee) will remain part of the contract unless and until removed, either by agreement or under specific right found within the contract. The court found that the statement of terms and conditions which took effect in April 1990 omitted any reference to incorporation of collective agreements or general instructions and notices; there was a heavy burden upon a party who asserts that the actual contract is different from the statement of terms and conditions. The head note to the judgment continues,

 

"In order to determine whether terms of the collective agreement relating to redundancy matters have been incorporated into individual contracts so as to become contractually enforceable as between employer and employee, the Court must look for the necessary contractual intent on both sides of the bargain and also look at the content and character of the relevant parts of the collective agreement. In the present case, the necessary contractual intent does not exist and the two parts of the collective agreement relating to redundancy were not both apt for incorporation into individual contracts. The evidence showed that both sides to the negotiations understood that they were involved in collective bargaining and that no-one believed that the agreement was binding upon individuals or intended that this should be the case."

 

The employer in that situation had argued that the withdrawal of the enhanced redundancy terms was linked to a pay increase, but the Court found that if the employers had wished to incorporate this term in individual contracts it could have written to the employees to this effect, making it clear that acceptance of the increase would also amount to acceptance of cessation of such rights. This case is slightly different. Neither party has addressed me on whether the MAP 2014 was expressly incorporated into the claimant's terms and conditions of employment, but they seem to have assumed that it was. I do not consider it necessary for me to make a specific finding in relation to this point. I have some reservations about the application of the point Mr Hamill makes about the respondent's lack of intention to be bound given that in the present case, there was no discussion or agreement directly between the claimant and the respondent. Given my findings below, this point may not be significant.

 

DECISION AND REASONS

 

23. In relation to the question of interpretation of the contract, I have considered this at some length. I am conscious that this decision may have implications beyond the present case, where the amount of money at stake is relatively modest. I wish to thank the representatives for their submissions, to which I have added my own research.

 

The relevant sentence in MAP 2014 is simply,

 

"During a phased return to work an employee would receive their normal salary/wages during the period."

 

It is therefore necessary to look at the definition of "normal pay" in the NJC Green Book for further clarification. That definition reads,

 

"Normal pay includes all earnings that would be paid during a period of normal working, but excluding any payments not paid on a regular basis."

 

It was explained, and I accept, that this definition includes regular payments to an employee, such as a shift allowance, but not payments which are irregular, such as overtime which is only paid when it is earned.

 

24. It seems to me that the interpretation of "normal pay" relates to what is considered to be a "period of normal working". The claimant, perhaps not surprisingly, has interpreted this in her favour to mean that she should receive her full pay for a week, but it is not clear if this is what was meant. A "period of normal working" could mean a day, but it could also mean a week or a month; it could even mean a year, depending on whether or not that was the "period of normal working" involved. In my view it is important to look at the background to the MAP 2014 policy and to consider objectively the intentions of the parties.

 

25. First of all, it was agreed that phased returns had taken place prior to the introduction of the new MAP 2014 and that during phased returns, an employee was entitled to be paid for the hours actually worked on a pro rata basis; but not a full week's pay. If, during a phased return, he or she only worked two days, then he/she was paid for those two days. Secondly, although the case law suggests that negotiations should not be taken into account as part of the evidence which can be relied on in interpreting a contract, Lord Hoffman's guidance in the West Bromwich case makes it clear that "all the background knowledge which could reasonably have been available to the parties in the situation in which they were at the time of the contract" can be included. What Lord Wilberforce referred to as "the matrix of fact" in Lord Hoffman's view includes "absolutely anything which could have affected the way in which the language of the document would have been understood by a reasonable man." I take into account that there was no evidence adduced by Mr Conn or the claimant or indeed by Ms Shannon that there was any discussion prior to the introduction of MAP 2014 which would tend to show a change in policy to increase the pay due to staff during a phased return. I also accept Mrs Shannon's evidence that any such change, which had clear financial implications, would have to be approved by the Elected Members of the Council and that no such change was approved by them. I do not dispute that the wording used in MAP 2014 does not make it absolutely clear that during a phased return an employee would receive their normal salary/wages only for the hours actually worked, but this was clearly the previous practice, so if either the unions or management had clearly understood and intended that that practice would be changed, I have no doubt that this would have been publicised to staff either in Brona Slevin's letter or by the union to its members. That did not happen.

 

26. Mr Hamill suggested in his submissions that if one accepted the claimant's contentions, this could have the result that she would be paid not only her full pay for the week, but also any occupational sick pay which she was entitled for the days not actually worked. While Mrs Smith rejected this submission, in my view it is important to take account of the construction which is consistent with business common sense. As Lord Clarke said in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900 UKSC:-

 

"The language used by the parties will often have more than one potential meaning. I would accept the submission made on behalf of the appellants that the exercise of construction is essentially one unitary exercise in which the court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. In doing so, the court must have regard to all the relevant surrounding circumstances. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other."

 

27. In this case it is clear that the construction which is consistent with business common sense is that an employee on a phased return is entitled to be paid for the hours actually worked during a week, but not for a full week's pay. A reasonable man would not have understood that an employee on a phased return would be paid a full week's pay for working a reduced number of hours but rather that the employee concerned should be paid for the hours actually worked, and no more. I have no doubt either that this was the clear understanding of both the respondent and the unions prior to and after the introduction of MAP 2014. While Mr Conn supported the claimant's interpretation of "normal pay", it is interesting to note that, from the minutes of the meeting in January 2015 of the Joint Negotiating Committee (when Ms Slevin took the opportunity to clarify what was meant by the relevant sentence in MAP 2014 about payment during a phased return) the unions did not appear to have put up more than a token objection to her comments. This to me clearly indicates that they, too, were clear as to the intention in this case.

 

28. Ms Smith also relied on the principle of contra proferentem. I do not believe that principle has any application here. It is clear from the comments of Arden LJ in Static Control Components (Europe) Ltd v Egan [2004] 2 Lloyd's REP 429 at paragraph 37, that the doctrine of contra proferentem only comes into play where there is an ambiguity in the sense that the answer cannot be derived with confidence from the application of the West Bromwich principles: if the answer still "admits of doubt" when those principles are applied, only then should contra proferentem be invoked. In my opinion this is not necessary in this case as it is clear to me from the context of these discussions what the clear business common sense interpretation of the contract should be.

 

29. It is my finding that the claimant is entitled to pay for the hours actually worked but not a full week's pay for her contracted hours during a period of phased return to work. Accordingly her claim for unlawful deductions of wages is dismissed.

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 28 July and 6 August 2015, Belfast.

 

 

Date decision recorded in register and issued to parties: