United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR BRUCE CARR (of Counsel) Instructed by: Messrs Rowley Ashworth Solicitors 247 The Broadway Wimbledon London SW19 1SE


 


MR JUSTICE WALL

1. This is the preliminary hearing of an appeal by Michael Jowitt against the Decision of the Employment Tribunal sitting at Leeds on 30 January of this year. By his form ET1, the Appellant claimed that his employer, Pioneer Technology (UK) Ltd, (the Respondent) had made unauthorised deductions from his pay. The Employment Tribunal dismissed his application.
2. The facts are helpfully set out in the Skeleton Argument provided by Mr Carr on the Appellant's behalf. The Appellant was employed by the Respondents as a line technician and his terms and conditions of employment were set out in a staff handbook. These provided, amongst other things, that the contents of the handbook, together with the appointment letter, formed part of his contract of employment. Any variations in the general terms and conditions set out in the handbook would be included in an appointment letter or other relevant documentation, and the Appellant would be notified of any subsequent changes in the terms of his employment.
3. Relevant for the purposes of this application are questions of payment during absence through sickness or injury. Paragraph 4.6 of the conditions lays down the scheme operated in relation to statutory sick pay. Paragraph 5, which deals with other benefits for these purposes includes the relevant paragraph 5.3 - "Long Term Disability", which is in the following terms:

"The Company runs a scheme that is designed to provide an income during lengthy periods of absence due to prolonged sickness or injury. Permanent and Established members of staff are entitled to two thirds of normal pay (inclusive of State benefits) after 26 weeks' continuous absence through illness or disability, for as long as they are unable to work up to date of retirement, as certified by a medical practitioner and, if necessary, confirmed by the Company's doctor."

4. What in fact occurred is that the Respondent provided long term disability benefits to its employees through the mechanism of an insurance policy called "The Scheme", entered into between the Respondent and Swiss Life UK PLC. As Mr Carr pointed out, there was no suggestion that the contents of this document were drawn to the attention of the Appellant or were otherwise incorporated into the contract of employment, although the Tribunal found that the handbook which I have already referred to, was so incorporated.
5. The Appellant's case is that the scheme differs substantially and significantly from the wording of paragraph 5.3 of the handbook. The relevant part of the scheme, for our purposes, is that which is headed "Disablement" and it is in these terms:

"In respect of Office Based and Clerical Employee's - A state of infirmity of mind or body as a result of which a Member shall be totally incapacitated from following his own occupation and shall not be following any other occupation.

In respect of all other Employee's - A state of infirmity of mind or body as a result of which a Member shall be totally incapacitated from following the occupation in which he was engaged by the Employer immediately before becoming incapacitated and is not following any other occupation or employment. In the event of a Member becoming so disabled for a continuous period of two years then before becoming entitled to any further benefit under the Policy Swiss Life must be satisfied of his total inability to follow any occupation."

6. In November 1996, due to a serious back condition, the Appellant began a prolonged period of absence from his employment with the Respondent. He began to receive benefit under paragraph 5.3 of the staff handbook with effect from 9 June 1997. Payment was made by Swiss Life to the Respondent who then paid the contractual benefit to the Appellant. However, benefit was suspended by the Respondent, with effect from 12 January 1999. It appears that the reason for the suspension was the view taken by Swiss Life that the Appellant was not unable to follow "any occupation", and it was in these circumstances that the Appellant brought his claim under Section 13 of the 1996 Act.
7. The substantive case upon which Mr Carr argues that an arguable point of law arises are what he submits are substantial discrepancies between the benefits under the handbook and the benefits that in fact were received under the scheme. He argues that the obligation of the employer is governed by the words in paragraph 5.3 of the handbook. He submits that the scheme is substantially restricted and different including a distinction between office based and clerical employees. More importantly, it creates a different basis of entitlement for the Appellant upon the lengths of absence from work, which did not appear in paragraph 5.3 of the staff handbook.
8. Mr Carr further argues that whereas the handbook appears to give the Appellant the unfettered right to payments through to retirement, the scheme introduces a significant restriction, following the two year period which the Appellant had already enjoyed.
9. Under paragraph 5.3 of the handbook, the Appellant was, it is argued, entitled on being unable to work, and subject only to certification by a medical practitioner, and, if necessary, confirmation by the Respondent's doctor, to two thirds of normal pay to the date of his retirement. In not providing that benefit, the Respondent, it is argued, was in breach of contract and made unlawful deductions from the Appellant's wages.
10. We have been persuaded by the able advocacy of Mr Carr that there is here an arguable point of law; that it is arguable that there is a discrepancy between the terms of the handbook and the terms of the scheme, and that further, if one takes a particular interpretation, as one can, from the phrase "absence through illness or disability for as long as they are unable to work" up to the date of retirement in paragraph 5.3, and interprets that as meaning that the Appellant was unable to qualify if he is unable to undertake the employment for which he was originally engaged, then there is, arguably, a discrepancy between that clause in paragraph 5.3, and the terms of the scheme.
11. In these circumstances, and on the basis that it is reasonably clear that the Appellant did not have the terms of the scheme brought to his attention, and as the Tribunal appears to have decided against him, on the basis that the sole obligation of the Respondents was to provide a scheme, without reference to its terms, we take the view that the points of discrepancy and the breach of contract are arguable.
12. Accordingly we propose to direct that this appeal should go to a full hearing. Half a day, Category B.