United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Miss M Tether, Barrister Instructed by - Messrs Pattinson & Brewer Solicitors 30 Great James Street LONDON WCIN 3HA
For the Respondent	Mr R M Greenhalgh, Consultant Of - Roger M Greenhalgh Personnel Projects & Services Afonig ST CLEARS SA33 4AD


 


LORD JOHNSTON:

1. In this appeal the appellant employee challenges a decision of the Employment Tribunal (Chairman sitting alone) dismissing her claim for unlawful deduction of wages in respect of her employment with the respondents.
2. The background to the matter is that the appellant, who was a long standing employee, had long term health problems and was off work for a considerable period of time which exhausted her entitlement to sick pay. However, at the beginning of 1999 she intimated that she would be fit to return to work on 1 February and produced a certificate to that effect from her doctor who had previously supported her periods off work with sick lines. It was not disputed that until 1 February she had been physically and medically unfit for work. However, the employers declined immediately to take her back, requiring their own doctor to satisfy themselves that she was fit for work and there followed a period of approximately six weeks when, although willing to work, the employers would not let her do so. At the culmination of that period, the employers were satisfied with her medical state having investigated the matter with their own doctor and she returned to work. This claim relates purely to that period.
3. As part of her contract of employment, certain parts of a group staff manual were incorporated into it, including, under the head of "Medical", the following provision:-

"1.4 Medical Suspension

An employee with three months or more service will be entitled to be paid if he/she is suspended from work on medical grounds. He/she will be entitled to be paid up to 26 weeks beginning from the day on which the suspension begins or until given medical clearance if that is sooner and must accept reasonable alternative work if it is offered. This does not affect employees who are medically unfit for work."

4. The relevant part of the decision of the Employment Tribunal is as follows:-

"Having considered the evidence and the submissions of agents for parties the Chairman accepted that there was no express term in the applicant's contract of employment which required the respondents to pay wages to her after her contractual and statutory sick pay entitlement had run out and while the respondents awaited confirmation from their medical adviser that she was fit to resume work. A term could not be implied merely because it was a reasonable one in all the circumstances or because the contract would be unreasonable or unfair without it. Such term was not necessary in order to give the contract business efficacy. Nor was it adopted as a matter of custom and practice or so obvious that the parties must have intended it. The applicant had in the past attended work unpaid on a "therapeutic basis" following a period of certificated absence. Ms Whitton, like the applicant, was contracted to fly as cabin crew. She was allowed, after a period of sick leave, to return to work on the ground. Unlike the applicant, however, Ms Whitton was deployed to ground duties when her entitlement to sick pay had not been exhausted. In the present case the respondents required to be completely satisfied that the applicant was fully fit to carry out her cabin crew duties. She had a substantial sickness record and the respondents could not ignore their health and safety responsibilities to the air travelling public and to other cabin crew. In the circumstances the application could not succeed. The application was dismissed."

5. Miss Tether, who appeared for the appellant, presented her case on two broad fronts against a background submission that the Employment Tribunal have failed properly to direct itself to the right question, in particular not even properly considering the issue posed by paragraph 1.4 which we have already quoted.
6. In the first place, against a background of common law authority, namely, O'Grady v M Saper Ltd [1940] 2 K.B .469, Mears v Safecar Security Ltd [1981] ICR 409 and Miller v Hamworthy Engineering Ltd [1986] ICR 846, she submitted that, at common law an employee had a contractual right to payment of wages when presenting him or herself for work unless the contract in a specific situation expressly denied that right for a particular reason. Her simple submission was therefore that in the present case since the employee was presenting herself as fit for work and willing to work, it was for the employers to show that they had a right not to pay her in that situation and the contract was express on this point. In this respect, it was wholly inappropriate to imply some sort of right to the employers to withhold payment.
7. Secondly, she submitted that properly understood, paragraph 1.4 dealt with the relevant situation inasmuch that having presented herself as fit for work, the refusal on the part of the employers to accept her, amounted to suspension on medical grounds for which she was entitled to get paid in terms of that provision.
8. Mr Greenhalgh, who appeared for the respondents, submitted that properly understood given the right of the employers properly to satisfy themselves that the employee was fit for work notwithstanding her own doctor's certificate, while carrying out the investigation in question the employer was exercising a legitimate, if implied right of an employer so to act and it was appropriate therefore to treat the employee in this context as still unfit for work. The corollary or extension of this position was that the last sentence of paragraph 1.4 removed its scope from this particular case.
9. All contracts of employment are governed, obviously, essentially by their expressed terms, but we are satisfied that at common law an employee who is offering his or her services to his or her employer is entitled to be paid in that situation and in those circumstances unless a specific condition of the contract regulates otherwise. In the present case we consider that the employee could do no more, in respect of her side of the mutual contract, than proferring her services against a background of a certificate of good health. It was thus for the employer to show that in this context the contract expressly entitled the employer to withhold payment. There is no such provision in this contract.
10. On this simple basis we consider that the Chairman misdirected himself and should have found in favour of the employee.
11. It follows that we do not have to determine the matter in relation to the provision of paragraph 1.4 and we are content to leave the matter on that basis since we have some concern as to whether the notion of suspension on medical grounds can be said to apply when an employee is proferring herself as fit for work and the decision of the employer is based on an investigation of her fitness and not a declaration of medical unfitness per se. We therefore reserve our position as to whether or not paragraph 1.4 applied in the present situation since it is not necessary to reach a decision on the matter. We also have to observe that if the employers in this case had directed themselves to the fitness or otherwise of the employee in terms of the medical investigations they wished to carry out during the relevant period while she was still off sick, the whole problem could have been avoided.
12. In these circumstances this appeal will be allowed and the matter remitted back to the Employment Tribunal for settlement or calculation of the precise amount of money due.