United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS MARY STACEY (Solicitor) Free Representation Unit Peer House 8-14 Verulam Street London WC1X 8LZ
For the Respondent	MR C J BENNISON (Consultant) First Business Support 12 Westminister Court Hipley Street Old Woking Surrey GU22 9LQ


 


JUDGE J R REID QC

1. This is an appeal from a Decision of an Employment Tribunal held at Sheffield on 15 March 2001. The Decision related to the particulars of employment in relation to statutory sick pay of Mr Moxon who, it was common ground before the Employment Tribunal, was an employee of the Respondent, IPSOS-RSL Ltd. The matter had come before the Tribunal only on this point, although Mr Moxon's original application to the Employment Tribunal had been wide ranging.
2. The Tribunal's conclusion was expressed beginning at paragraph 10 of the Decision, and although it is rather lengthy, I think I should read paragraphs 10 - 12 of the conclusion. They said this:

"10. We have given very careful consideration to the task of interpreting the Regulation in the circumstances we find to apply in this case and we do this in a number of steps as follows:

(i) Considering the text in Regulation 5(2) itself we do not accept that in this case there is between the parties any agreement as to which days are to be qualifying days….."

(The regulation to which reference is there being made is Regulation 5(2) of the Statutory Sick Pay (General) Regulations 1982).

"….In other words we do not accept the memorandum as such an agreement."

(That is a memorandum of 23 September 1999)

"We do not consider that this was explicitly or implicitly made part of the contract. We do not think that it is proper to assume that an employee has affirmed or acquiesced in a provision if the party seeking to impose the provision has not adequately explained the import and effect of that provision. Had this applicant been in possession of the field manual then the position would have been clearer"

(The field manual was apparently a manual produced by the employer for its various interviewer employees, but for whatever reason, no copy of that had made its way to the Applicant, Mr Moxon).

"the matter is also clearly set out in an inter-departmental memorandum but again the applicant did not have sight of that. Moreover the applicant was not required to sign or acknowledge the memorandum. In these circumstances it is necessary for us to give consideration to the three sub paragraphs (a), (b) and (c)."

I pause there to read the relevant parts of the Regulations. They are in these terms:

"Regulation 5

(1) In this regulation "week" means a period of 7 consecutive days beginning with Sunday.

(2) Where an employee and an employer of his have not agreed which day or days in any week are or were qualifying days…Or where in any week the day or days are or were such as is referred to in paragraph( 3)"

[which is not actually material here]

"… qualifying day or days in that week shall be -

(a) the day or days on which it is agreed between the employer and the employee that the employee is or was required to work (if not incapable) for that employer or, if it is so agreed that there is or was no such day

(b) the Wednesday, or, if there is no such agreement between the employer and employee as mentioned in sub-paragraph (a),

(c) every day, except that or those (if any) on which it is agreed between the employer and the employee that none of that employer's employees are or were required to work (any agreement that all days are or were such days being ignored)."

Reverting then to the Tribunal's Decision:

"(ii) In relation to sub paragraph (a) this will only apply if there was an agreement between the parties as to the day or days when the employee was required to work. If, as is common ground in this case there was no such agreement then it is necessary to consider sub paragraph (b).

(iii) At the outset of that sub paragraph Wednesday is said to be the qualifying day. However, the sub paragraph as we have mentioned goes on to say "or if there is no such agreement between the employer and employee as mentioned in sub paragraph (a) there will be in that case effective the provisions of sub paragraph (c). The confusion in the drafting which we believe has misled the applicant into considering that sub paragraph (c) applies is that there are in fact two agreements referred to in sub paragraph (a) The first agreement envisaged by sub paragraph (a) is that relating to the days when work is required. The second agreement is effectively that there was no agreement as to the former. However, when sub paragraph (b) refers to "no such agreement" it does not stipulate which agreement it is referring to. In order to make sense of the rest of the regulation we believe that the reference in sub paragraph (b) to "no such agreement" must be a reference to the first agreement envisaged in sub paragraph (a) i.e. as to the days the employee is required to work.

(iv) Accordingly on our analysis of these regulations, Regulation 2(c) is never arrived at in the circumstances of this case.

(v) It follows that the memorandum of September 1999 does correctly identify the qualifying day albeit not under the main text of Regulation 5(2) but by reference to Regulation 5(2)(b).

11. As our jurisdiction as provided for in Section 12(2) of the 1996 Act is to confirm, amend or substitute particulars we are in this case confirming the particulars as they relate to Statutory Sick Pay and as they are set out in the memorandum. It is only this limited task that is before us.

12. We appreciate that this interpretation may be regarded as imposing a hardship on the applicant who would therefore have to be ill for three consecutive Wednesdays before he obtained Statutory Sick Pay. However, we do not feel that the envisaged hardship can alter our interpretation of the Regulation itself and we also remind ourselves that there is a broader picture in that the applicant might, if those circumstances arose again, be able to claim state benefits. Indeed we are told that there is an appeal pending before the benefits tribunal."

3. Against that Decision, Mr Moxon has appealed, claiming that it is indeed sub-paragraph (c) which applies so that the qualifying days are every day except that or those, if any, on which it is agreed:

"every day, except that or those (if any) on which it is agreed between the employer and the employee that none of that employer's employees are or were required to work (any agreement that all days are or were such days being ignored)."

4. The first and most forceful point to put forward on his behalf by Ms Stacey is that if that interpretation is correct, there will never be any circumstances in which sub-paragraph (c) arises. In our judgment, that submission is correct. We are assisted in coming to that conclusion by a decision of Mr V G H Hallett, a Social Security Commissioner in a decision reported under the title " R(SS/P) 1/185" a decision where at paragraph 10 he said this (and this was in fact a case which related to voluntary overtime customarily done on a Saturday):

"In order to determine whether a day is a qualifying day the first step is to seek whether the day in question has been agreed between the employer and the employee to be a qualifying day: see section 4(2) of the Act. If the employer and employee have not agreed between them as to what shall be the qualifying days, then the second step must be taken, which is to look to see what are the day or days on which it is agreed between them that the employee is or was required to work (if not incapable): see regulation 5(2)(a). If there is any such agreed day or days, it is necessary to look no further. The day or days so agreed are the qualifying days. If, however, there are no such days, it is necessary to take the third step which is to look to see whether the employer and employee have agreed that there is or was no day on which the employee is or was required to work. If the answer is Yes, then Wednesday is the qualifying day: see regulation 5(2)(b). Fourthly, and finally, if the employer and employee have not entered into any of the agreements mentioned above, then every day, subject to a specified exception relating to days when all employees of that employer are not required to work, is to be a qualifying day: see regulation 5(2)(c)."

5. It seems to us that that short and clear statement of what the regulation means is absolutely right. The Tribunal, with respect, has managed to get itself into a difficulty, not of its own making because it did not have the benefit of Mr Hallett's decision being cited to them. It has misinterpreted the wording at the end of 5(2)(b) and thereby produced an interpretation which deprives 5(2)(c) of the possibility of ever having effect. It seems to us that that cannot be Parliament's intention and that the interpretation given by Mr Hallett not only is the obvious and sensible interpretation, but is one which must have been Parliament's intention.
6. The result of that is that the Tribunal's Decision should be reversed and in lieu of the Decision which they made, we will declare that in respect of the particular of employment in relation to Statutory Sick Pay, each day is a qualifying day except those days, if any, on which it is agreed between the employer and employee that none of the employer's employees are or were required to work. The position we believe is that there are no such days since this is work of a type which is apparently done randomly over every day of the week.
7. In deference to what Mr Bennison said, I should simply add this: first it is far too late at this stage to assert that there was no mutuality and therefore no contract of employment. The Originating Application and the answer make it perfectly clear that it was common ground between the parties that Mr Moxon was an employee and, indeed, he had been paid sick pay as such. The only issue was as to what the qualifying days were. Second, his plea in misericordiam to the effect that this might be very hard on employers, cuts no ice with this Tribunal. The employers have it in their own hands to ensure that they do not fall into the trap that this employer appears to have fallen into with this particular employee. By agreeing what qualifying days are or by making such agreements as are referred to in paragraph 5(2). Indeed, it appears in relation to its other employees that this employer had already done so, ensuring that Wednesday is to be the only qualifying day.
8. Finally, we should say, that it was suggested to us that this might be a case of some general importance. In our judgment, it is not; it is very much a one-off arising in the particular and peculiar circumstances of the case where there appears to be a more or less total failure of communication between the employer and the employee. The fact that this is not a matter of any great import we think can be judged from the fact that the only occasion when the matter appears to have come for any form of decision before is the decision R(SS/P)1/185 which I think I am right in saying was decided on 10 September 1984. That apart from that, these regulations have been in force for some twenty years without this particular point ever having required a judicial decision of any form. We are grateful to both parties for their representations. For those reasons the appeal is allowed.