United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS G WHITE (of Counsel) Instructed by: Messrs Copley Davies Solicitors 36 Battlefield Road St Albans Hertfordshire


 


JUDGE D PUGSLEY

1. This is a case where we have had the benefit of a very full and comprehensive Skeleton Argument, and we do consider there is a case that raises issues of a wider public interest.
2. We do not need to go into great detail as to the fact that there are two appeals - we allow both matters to go forward to be heard.
3. The reality is that we do not claim to know how widespread this particular issue is, but we suspect that there will be many people, many employees, and many firms which will be affected.
4. In brief, the issue which arises is this: the Applicant was employed by John Sisk & Son, as a General Foreman. His contract of employment was transferred to the Respondents in April 1995, by which time he had been promoted to the position of Site Manager. Following a car accident in March 1999 Mr Fletcher began a period of sickness absence and was not able to return to work, he was therefore dismissed on medical grounds, on 20 August 1999.
5. Mr Fletcher presented an Originating Application to the Employment Tribunal on 8 November, claiming damages for breach of contract and unfair dismissal. He placed particular reliance upon the fact that his dismissal deprived him of the benefit of a permanent health insurance scheme, from which he would have been entitled to receive payments, had he been made an employee of John Sisk.
6. The Tribunal decided in the hearing, which was a decision promulgated on or about 5 September, that the termination provisions did not satisfy the requirements of reasonableness, as defined by the Unfair Contract Terms Act and the implied term not to dismiss was therefore an implied term of Mr Fletcher's contract of employment
7. What is argued is the Tribunal fell into error in its construction of Section 3 of the Unfair Contract Terms Act and it is urged that the Tribunal ought to have held that the PHI clause was a contractual term which set out Mr Fletcher's full contractual entitlement in respect of John Sisk's PHI scheme, and John Sisk did not undertake a contractual obligation not to dismiss Mr Fletcher, so as to deprive him of the benefit of these schemes.
8. The second argument is that the error in holding the termination provisions was void, and therefore went on to compound it by holding that there was an implied term not to dismiss. It is argued that Section 3 merely prevents a party from relying upon the term for its specified purpose, and it is argued it is implicit in the wording that the offending term remains a term of the contract, but is not one on which a party can rely.
9. This is clearly an important issue. It is said in the Skeleton Argument that this is a case which should be Category C: we disagree, if we may say so. No doubt, that is just Miss White's modesty in pitching it at that level, if we may say so, we do think this is a case that does raise very serious implications.
10. As we say, we do not claim to know the full extent of the problem but it does raise real issues. It might be somewhat cynically said that not much is being asked of an insurance company and not much is being given to the employee, if a permanent health insurance policy is dependent upon the contract of employment still subsisting.
11. In a nutshell, most of us need protection for sickness when we are ill and cannot work, not when we are at work and earn a wage, thereby, and we do think that this should be a Category A case, and we recommend, if we may say so, that it be heard by the President, because we think it does involve real issues which could have a far reaching public interest.
12. We have been told by Counsel that she has met a paucity of authority on the topic, and we think that this is a case that does require to be very carefully considered, authoritatively, by a division of this Tribunal.
13. I do not think anything follows - there will be standard directions to Skeleton Arguments and the like. I have to say that I do hope that the Respondent does receive legal aid for this matter. It would be quite wrong that he should be asked to bear the cost of what, in effect, is clarifying the law on a difficult area and one which we regard as of significant importance.

Class A, President if possible.