United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G CLAYTON (Solicitor) Hamilton House Mabledon Place London WC1H 9BD
For the Respondents	MR T CROXFORD (of Counsel) The Solicitor Somerset County Council County Hall Taunton TA1 4DY


 


MR JUSTICE BELL: This is an appeal of a school teacher, Ms Sides against the decision of an Industrial Tribunal sitting alone at Exeter.

Ms Sides has been employed as a teacher by the Somerset County Council at Martock Primary School since 1 September 1982.

On 23 September 1996 she was injured as the result of an accident at work, leading to prolonged absence from work.

Her employment is subject to the terms and conditions of employment negotiated nationally and known as the Conditions of Service for School Teachers in England and Wales, universally known for convenience as "The Burgundy Book."

Ms Sides received full pay from the first day of her absence until 31 May 1997. Thereafter she was paid half pay only. On 2 July 1997 she filed an Originating Application complaining of unauthorised deduction of wages, founded on an argument that the school and the County Council, the Respondents to her application, had misinterpreted the relevant provisions of paragraph 9 of the Burgundy Book, relating to Leave of Absence, Sick Pay and Sick Leave.

The Chairman heard representatives on 13 August 1997. He reserved the issues between the parties in favour of the Respondents' construction of the relevant parts of paragraph 9, and by a Decision entered in the Register on 15 August 1997, he dismissed the Applicant's application.

Ms Sides now appeals against that Decision. The issue on the appeal is one of pure construction of paragraph 9 of the conditions and particularly subparagraphs 9.1.1 and 9.1.15, and we must decide whether the Chairman's construction was right.

Paragraph 9 is headed: "Leave of Absence", and the first subparagraphs read as follows:

"9.1 Sick Pay and Sick Leave - Scale of Sick Pay: Calculations of Sick Pay:

Conditions.

SICK LEAVE

9.1.1. Subject to the provisions of this scheme, a teacher absent from duty owing to his/her illness (which term is deemed to include injury or other disability) shall be entitled to receive in any period of one year sick pay in accordance with the following scale:

During the first year of service:	full pay for 25 working days and, after completing four calendar months service, half pay for 50 working days.
During the second year of service:	full pay for 50 working days, and half pay for 50 working days.
During the third year of service:	full pay for 75 working days, and half pay for 75 working days.
During the fourth and successive years	full pay for 100 working days, and half pay for 100 working days.

This scale is to be regarded as a minimum and the authority have discretion to extend its application in any individual case."

The provisions in relation to the fourth and successive years, i.e. "full pay for 100 working days, and half pay for 100 working days", applied to Ms Sides, a longstanding employee.

Paragraph 9 continues:

SICK PAY

9.1.2. Sick Pay shall include, where appropriate, Statutory Sick Pay, and shall not exceed full (ordinary) pay.

Appropriate deductions are detailed in the following sub-paragraphs:

CALCULATION OF SICK LEAVE AND SICK PAY

9.1.3. For the purposes of calculating entitlement to sick leave under paragraph 9.1.1 above, the year shall be deemed to begin on April 1 of each year and end on March 31 of the following year. In the case of a teacher whose service commences on a date other than April 1, such service shall be deemed, for the purpose of this scheme, to have commenced on the preceding April 1, subject to the completion of four calendar months' actual service before half-pay can be claimed. In the case of a teacher who is absent owing to illness on March 31 of any year, such teacher shall not begin new entitlement to sick leave in respect of the following year until he/she has resumed teaching duties, the period from April 1 until the return duty being deemed to be part of the preceding year for the purpose of this scheme ...."

Subparagraphs 9.1.4 contains various provisions relating to deductions from sick pay.

Subparagraph 9.1.8 provided, in part, as follows:

"Whilst sickness during school holidays will not affect the period of a teacher's entitlement to sick leave under 9.1.1 above, it will be relevant so far as deduction of benefit is concerned."

Subparagraphs 9.1.12 to 9.1.21 appear under the heading "CONDITIONS"

Subparagraph 9.1.15 reads as follows:

"9.1.15. In the case of absence due to accident attested by an approved medical practitioner to have arisen out of and in the course of the teacher's employment, including attendance for instruction at physical training or other classes organised or approved by the authority or participation in any extra curricular or voluntary activity connected with the school, full pay shall in all cases be allowed, such pay being sick pay for the purposes of paragraphs 9.1.2 to 9.1.11 above, subject to the production of self-certificates and/or doctors' statements from the day of the accident up to the date of recovery, but not exceeding six calendar months, after which the case will be reviewed before a decision on any extension of the period of sick pay should be reached. Absence resulting from accidents shall not be reckoned against the teacher's entitlement to sick leave under 9.1.1 above, though such absences are reckonable for entitlement to Statutory Sick Pay."

It was common ground the Appellant's injury was of a kind which brought her fairly and squarely within the ambit of paragraph 9.1.15 and the respondent authority paid her full pay in accordance with the provisions of that paragraph.

In correspondence in February 1997, the respondent authority referred to the first respondent's need to conduct a review of the position after 6 months, rather than after 100 days, which was consistent with full pay being paid under paragraph 9.1.15 rather than 9.1.1. A teacher's year was 195 days of directed time, so 100 days may equate to 6 calendar months in practice, but this is not necessarily so. Six calendar months full pay after an accident late in the summer term and just before the long summer holiday, for instance, would not amount to full pay for 100 working days.

In any event, as a result of the first review, the Appellant's full pay was extended to 31 March 1997, and upon a second review her full pay was extended to 31 May 1997, as from 1 June 1997 she went onto half pay. That state of affairs was to continue until 30 November 1997, a period of six calendar months, when the respondent authority proposed to carry out a further review to determine whether any fresh extension of sick pay under paragraph 9.1.15 would be granted.

That was the position when the Chairman made his decision in August 1997. In fact the Appellant returned to work in early November 1997, so no further review was required, but that does not affect this appeal.

The Chairman put the issue between the parties clearly and succinctly in paragraph 7 of his Decision as follows:

"The applicant's case, in essence, is that the 2 schemes which I have set out above are effectively complimentary and that as absence resulting from an accident envisaged in 9.1.15 is not to be reckoned against the teacher's entitlement to sick leave under 9.1.1, then once the entitlement to full pay under 9.1.15 is exhausted, then the entitlement under 9.1.1 arises and so the applicant is entitled to the benefit of a further 100 days full pay followed by 100 days half pay. The respondents' case is that the 2 entitlements are mutually exclusive; an employee cannot obtain benefits under both sections in respect of the same injury, but will not lose the entitlement to time off as the result, say, of a bout of 'flu simply because he or she has already had 6 months off as a result of what might be described as an industrial injury."

"On balance" he preferred the respondents' reading of the contract. He was impressed by the fact that, although in paragraph 9.1.1 it was provided that illness is deemed to include "injury" which was apt to cover an injury sustained at work, the draftsmen of the agreement had thought it appropriate to incorporate "a separate provision" which specifically covered the entitlement in respect of a work related injury. On the face of it, in his view, therefore, there were "2 separate schemes" and he did not think that the two paragraphs could legitimately be read to give an employee full benefit under later schemes in respect of the same injury, to run consecutively.

The Chairman was reinforced in his view by a consideration of paragraph 9.1.16 which provides:

"9.1.16. When the approved medical practitioner attests that there is evidence to show a reasonable probability that an absence was due to an infectious or contagious illness contracted directly in the course of the teacher's employment full pay shall be allowed for such a period of absence as may be authorised by the approved medical practitioner to be due to the illness, and such absence shall not be reckoned against the teacher's entitlement to sick leave under 9.1.1 above though such absences are reckonable for entitlement to Statutory Sick Pay".

The Chairman's view of that paragraph was that although it contained wording to paragraph 9.1.15 in respect of such absence not being reckoned against a teacher's entitlement to sick leave under 9.1.1, it was quite clear that there was no scope for the benefits under that scheme to be taken in conjunction with the benefits under the scheme in 9.1.1. So long as the absence was due to the illness, the teacher is entitled to sick pay for as long as the doctor certifies it is necessary, and the possibility of "topping up" by bringing the scheme in 9.1.1 into play did not arise

The Chairman took the Appellant's point that the benefits payable under 9.1.15 might well provide for a shorter period than the scheme under 9.1.1; but that did not seem to him to be so extraordinary a result as to throw doubt on the construction which led to it. The entitlement to 100 days full pay and 100 days half pay in 9.1.1 was a cumulative entitlement which might be taken throughout the year depending upon how frequent or long lasting bouts of influenza or stomach trouble, or any other complaint may be. The entitlement under 9.1.15 was in respect of an "industrial injury" and in the Chairman's view there were not many cases in which an injury at work would incapacitate for a full 6 months or longer. In any event the teacher's employers had a discretion as to whether to extend the period of sick pay, and despite the financial constraints upon them they plainly did exercise their discretion on occasions, as they did in the Appellant's case.

The Chairman noted that the logical outcome of the Appellant's construction of the contract would be that the Appellant would be entitled, as a matter of contract, to 6 months full pay under the scheme in 9.1.15, followed by 100 days full pay, which was half a school year, under the scheme in 9.1.1 followed by a further 100 days on half pay. That would mean that a teacher injured at work would in fact be entitled to a full year's pay full pay followed by half a year's half pay, which he thought to be wholly inconsistent with the way in which paragraph 9 was set out.

In the Chairman's judgment, therefore, the Appellant was only entitled in the circumstances to the benefits as they were set out in paragraph 9.1.15, and there had been no unlawful deduction from pay by the Respondents in applying that paragraph to the exclusion of paragraph 9.1.1.

Mr Clayton, for the Appellant, argued that the Chairman's decision was wrong. The construction for which he contended was that applied by the majority of local education authorities. It reflected the view of the Council of Local Education Authorities. A number of points supported the Appellant's construction.

Paragraph 9.1.15 provides for only 6 months pay, at full pay. It did not expressly provide a period of half pay at all. It could not have been intended that a teacher with many years experience who suffered a disabling injury arising out of and in the course of her employment (an "industrial injury") should be entitled as of right to six calendar months full pay only, by virtue of paragraph 9.1.15, which might well amount to less than 100 working days full pay, albeit with discretionary extension thereafter, when a teacher of the same experience, who suffered a disabling injury in a road accident, for instance, unrelated to her employment would be entitled under paragraph 9.1.1 would be entitled as of right to full pay for 100 working days, which might well extend over more than six calendar months, plus half pay for 100 working days with the possibility of discretionary extension thereafter.

The provision in paragraph 9.1.15 that "absence resulting from such accidents shall not be reckoned against the teacher's entitlement to such leave under 9.1.1", was most readily interpreted as meaning that any entitlement under paragraph 9.1.15 was not to be counted against the entitlement in paragraph 9.1.1, whether the entitlement under 9.1.1 arose from the same injury or another injury or illness.

The respondents could gain no assistance from paragraph 9.1.16. All that could be said of paragraph 9.1.16 was that it would make it unnecessary for a teacher who had a claim under that paragraph to claim under paragraph 9.1.1 in respect of the same illness.

There was nothing in the express wording of paragraph 9 as a whole which indicated that the entitlements under paragraphs 9.1.1 and 9.1.15 were mutually exclusive. The opening words of paragraph 9.1.1 "subject to the provisions of their scheme" were related most easily to the provisions for deductions. Even the respondents did not operate paragraph 9.1.15 to the exclusion of paragraph 9.1.1 in the Appellant's case, because they paid her half pay from 1 June 1997 to November 1997, when half pay was not provided for under paragraph 9.1.15.

If it was intended that the provisions of paragraph 9.1.15 should take away the entitlements of a victim of an industrial accident under paragraph 9.1.1 it would surely have done so in clear and express terms.

Mr Croxford for the respondents, adopted the Chairman's reasoning. In addition he argued that the opening words of paragraph 9.1.1, "subject to the provisions of this scheme" clearly meant that the benefits offered pursuant to paragraph 9.1.1 might be modified, displaced, or altered by subsequent provisions. Paragraph 9.1.1 expressly contemplated the substitution of later provisions for the benefit schedule of paragraph 9.1.1.

Mr Croxford argued that the different measurement of sick pay entitlement, in paragraph 9.1.1 by reference to working days and paragraph 9.1.15 by reference to calendar months, tended to indicate that the two schemes were mutually exclusive.

He said that paragraph 9.1.15 distinguished between "sick pay" which was subject to the same deductions and treatment as sick pay paid pursuant to paragraph 9.1.1, and "sick leave" which arose solely under 9.1.1. One could be absent within the terms of paragraph 9.1.15 and maybe a claim under its provision although one had already claimed sick leave under paragraph 9.1.1. Likewise, after receiving full pay under paragraph 9.1.15, one could claim sick leave for a subsequent illness, under paragraph 9.1.1. That was the purpose of the provision in paragraph 9.1.15 that "absence resulting from such accident shall not be reckoned against the teacher's entitlement to sick leave under 9.1.1". Sick leave there clearly meant sick leave not due to the qualifying injury for paragraph 9.1.15.

Mr Croxford argued that, if paragraphs 9.1.1 and 9.1.15 were complimentary, there would be no need for the mandatory review ("will be reviewed") at the end of six calendar months under paragraph 9.1.15 before a decision on any extension of sick pay, because the teacher injured at school could simply switch to the supplementary entitlements under paragraph 9.1.1, with its discretionary extension after the number of days appropriate to the teacher's length of service. Indeed the mandatory review under paragraph 9.1.15 was inconsistent with an entitlement to switch to paragraph 9.1.15.

There was no injustice in restricting a teacher injured at work to her entitlement under paragraph 9.1.15. The provision for mandatory reviews with a discretion to extend the period of pay took care of that.

It was clear that 9.1.16 provided a separate scheme to 9.1.1. It was clear that the words in 9.1.16 that "such absence shall not be reckoned against the teacher's entitlement to sick leave under 9.1.1 above" could only relate to sick leave under 9.1.1 in respect of an illness other than the infectious or contagious illness which had brought clause 9.1.16 into play, because the 9.1.16 entitlement continued for the period of absence due to the infectious or contagious illness. Since the same words were used in clause 9.1.15 they too must relate to sick leave under 9.1.1 in respect of n illness or injury other than the injury which had brought clause 9.1.16 into play.

There are powerful points on both sides of the argument, well reasoned and made by Mr Clayton and Mr Croxford, but we prefer the construction of the conditions, for which Mr Clayton has extended.

The deciding factor for us has been the anomaly which arises, if the respondent's constructions correct, that the teacher disabled by an industrial accident would be entitled as of right to less than the teacher injured away from work. Even in the public sector we do not judge the possibility of a discretionary benefit to be the equal of an entitlement under the terms of one's contract of service.

We do not consider that this anomaly can be explained by saying, as the Chairman did, that there are not many cases in which an injury at work will incapacitate for a full six months or longer. We can see no basis for the statement, but even if it were true it would still leave injustice in some cases.

We see nothing incongruous to a generous provision, with entitlements under paragraph 9.1.1 following entitlement under 9.1.15 in the case of a teacher seriously injured (as must normally be the case if absence from work lasts longer than six months) in the course of her employment.

We do not consider that an entitlement to one year's full pay followed by half a year's half pay is inconsistent with the way in which paragraph 9 is set out, bearing in mind the deeming provision of paragraph 9.1.3 concerning continuation of a period of absence into the next year from 1 April.

In our view the comparison with paragraph 9.1.16 loses impact when one remembers that the terms and conditions have been created, modified and added to by negotiation over many years. In any event the period of entitlement, as of right, to full pay, lasting for the full absence due to the infectious or contagious illness, is very different to the period as of right to full pay, under paragraph 9.1.16.

For all these reasons, this appeal must, in our judgment, be allowed.