United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D BASU (of Counsel) Instructed by: Messrs Hodge Jones & Allen Solicitors Twyman House 31-39 Camden Road London NW1 9LR


 


MR RECORDER BURKE QC:

1. We are going to give you the leave that you seek Mr Basu, not without a certain amount of hesitation. Because we are allowing this appeal to go through to a full hearing, it is unnecessary to give a full jugdgment. It seems to us, having looked at this case with care that there are arguable grounds for appeal on all of the three grounds that are set out in the Notice of Appeal.
2. It may seem at first blush to be surprising that it should be argued that the Whitley Council Sickness Scheme, which provides for 12 months sickness pay at the full rate in certain circumstances, where there is in effect an injury at work from the date when the injury or disease occurred, should be cumulative with the term in the individual contract of employment, which provides for 6 months full pay and 6 months half pay during sickness.
3. Clearly the Applicant's claim was based on the Whitley scheme. In order to decide whether the Whitley scheme applied, so that he got home or did not get home, the Tribunal had to address its mind to two questions, among others, the two questions which are now the important questions. The first was whether the two schemes can be accumulated and should be accumulated as a matter of contract; the second was whether if the Whitley council scheme became relevant at all because, if there was no accumulation, 12 months from the date in February 1998 when the Applicant first went off work through a relevant injury would have expired by February 1999 and he received full pay from the date of his absence in September 1998 until May 1999. The Tribunal needed to find as a fact whether the qualifications or conditions for payment under the Whitley Council scheme, had or had not been satisfied.
4. The Tribunal does not seem to have addressed its mind, as we see it at the moment, or at least it is arguable that it did not, to the accumulation question; and it is wholly unclear, what they thought about that, and, whether it was or was not accepted that accumulation was contractually correct. Mr Basu submits to us on instructions, he having not been present at the Tribunal, that it was not in dispute; but there is nothing that shows with clarity that that was necessarily so, although of course we do not for one moment suggest that either Mr Basu or his instructions are not seeking to tell us accurately what occurred. Secondly the Tribunal, it seems arguable to us, did not approach this case by seeking to find as a fact, whether or not the employee did fall within the qualifying conditions for the Whitley Council scheme provisions as to sickness pay.
5. The Tribunal seems firstly to have looked not at those provisions, but at the interruption in the Applicant's absence between 24 February 1998 and his subsequent sick absence from September 1998 and seems secondly, to have looked not to whether he fulfilled the conditions, but whether he was, when he went off work, asserting that he fulfilled those conditions. Neither of those matters directly resolve (although they might inform), it seems arguable to us, the central question which the Tribunal had to decide. It is clear that if there is no accumulation, Mr Mohammad is not going to get any benefit out of this appeal even if the Tribunal is eventually found to have been wrong, as we believe it arguably was, and, no doubt, great attention will be paid to that; but it seems to us, as I have said, that all three grounds are arguable for the reasons which I have expressed and therefore this appeal must go through to a full hearing.
6. We are asked to order that the notes of the evidence of Mr Mohammad and medical evidence of Dr Nagpaul should be provided. The position is so confused that it seems to us to be one of those rare cases in which it would help the Employment Appeal Tribunal which ultimately decides this appeal if it did have the notes of what the Applicant was saying about the history and about how he was reacting at the various stages in the chronology. As for the evidence of Dr Nagpaul, we believe that that was in writing and not oral in which case there is no need for any notes. The Employment Appeal Tribunal will want to have in front of it any medical evidence which was placed in front of the Employment Tribunal and no doubt counsel and those instructing him will see that that is done. Category C, ½ a day.