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Cite as: [1990] UKSSCSC CI_231_1988

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[1990] UKSSCSC CI_231_1988 (06 June 1990)

R(I) 1/91

Mr. D. G. Rice CI/231/1988

Industrial accident – accident while travelling to work on detached duty – whether accident in the course of employment

The claimant, a warehouse supervisor for British Telecom, was redeployed from his regular workplace at Thurmaston to a detached duty station at Loughborough. He was paid a flat-rate travelling allowance to compensate for the extra travel between his home and the detached duty location. Some six months after redeployment he was involved in a road traffic accident on his way home from work approximately ten minutes after he had finished work for the day. The claimant made an application for a declaration that the accident was an industrial accident under section 107 of the Social Security Act 1975. The adjudication officer refused the application on the grounds that the accident did not arise out of and in the course of employed earner's employment. On appeal the social security appeal tribunal upheld the adjudication officer's decision. The claimant appealed to the Commissioner.

Held that:

on the particular facts of this case it was clear that the receipt of a flat-rate travelling allowance could not be construed as receipt of wages whilst travelling. (Smith v. Stages HL(E) 2 WLR 529 considered).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

For the reasons hereinafter appearing, the decision of the social security appeal tribunal given on 8 March 1988 is not erroneous in point of law, and accordingly this appeal fails.

This is an appeal by the claimant, brought with the leave of the tribunal chairman, against the decision of the social security appeal tribunal of 8 March 1988. The claimant asked for an oral hearing, a request which was acceded to. At that hearing the claimant, who was not present, was represented by Mr. D. McCleod of Counsel, instructed by Messrs. Lawfords, Solicitors, whilst the adjudication officer appeared by Mr. D. Conridge of the Chief Adjudication Officer's Office. I am indebted to both of them for their submissions.

The facts of this case are not in dispute. The claimant, a warehouse supervisor for British Telecom, who had previously been working at Thurmaston, two or three miles from his home, had for some six months been redeployed to Loughborough approximately twelve miles away, when on 2 December 1986 at about 6.35 pm, having finished work approximately ten minutes earlier, he had the misfortune to become involved in a head-on collision with a drunken driver and sustain severe head injuries. The question arose as to whether or not he was still in the course of his employment when the accident occurred. For if he could establish that the accident arose out of and in the course of his employment, then he was entitled to a declaration that the accident was an industrial accident. The claimant claimed that it was, but on 18 March 1987 the adjudication officer refused to accept that such was the case. In due course, the claimant appealed to the tribunal who in the event upheld the adjudication officer.

The tribunal made the following findings of fact:

"1. The claimant was working at Loughborough and had been for six months. This was to see if he was fit for promotion.

He was on his way home by his own car and a few minutes later was involved in an accident, and seriously hurt.

He was entitled to a flat-rate allowance. (calculated according to THQ circular handed to us and BT Gazette notice).

He could return at what time he liked to home after his hours of duty and could leave home in the morning at what time he liked provided he was present at his employment at the proper starting time . . . and left after completing his work."

The tribunal gave as the reasons for their decision the following:

"1. Considered Nancollas and Ball (referred to in appendix to R(I) 7/85).

There is a wealth of authorities on the relevant point - "Did the accident arise in the course of his employment?" The facts must be considered carefully in each case as is made plain by Nancollas and Ball.

We do not think the flat-rate allowance affects claimant situation. It is merely a matter of calculating . . . travelling expenses.

The claimant could have travelled to and from Loughborough as he decided. His employer had no control over that.

We are unanimous that he was in the course of a journey [from] work and not at work."

Mr. McCleod drew my attention to the. observations of Lord Lowry in Smith v. Stages (HL(E)) [1989] 2 WLR 529 at page 551:

"The paramount rule is that an employee travelling on the highway would be acting in the course of his employment if, and only if, he is at the material time going about his employer's business. One must not confuse the duty to turn up for one's work with the concept of being 'on duty' while travelling to it.

It is impossible to provide for every eventuality and foolish, without the benefit of argument, to make the attempt, but some prima facie propositions may be stated with reasonable confidence.

An employee travelling from his ordinary residence to his regular place of work, whatever the means of transport and even if it is provided by the employer, is not on duty and is not acting in the course of his employment, but, if he is obliged by his contract of service to use the employer's transport, he would normally, in the absence of an express condition to the contrary, be regarded as acting in the course of his employment while doing so.

Travelling in the employer's time between workplaces (one of which may be the regular workplace) or in the course of a peripatetic occupation, whether accompanied by goods or tools simply in order to reach a succession of workplaces (as an inspector of gas meters might do), will be in the course of the employment.

Receipt of wages (though not receipt of a travelling allowance) will indicate that the employee is travelling in the employer's time and for his benefit and is acting in the course of his employment and in such a case the fact that the employee may have discretion's as to the mode and time of travelling will not take the journey out of the course of his employment.

An employee travelling in the employer's time from his ordinary residence to a workplace other than his regular workplace or in the course of a peripatetic occupation or to a scene of an emergency, (such as a fire, an accident or mechanical breakdown of plant) will be acting in the course of his employment.

A deviation from or interruption of a journey undertaken in the course of employment (unless the deviation or interruption is merely incidental to the journey) will for the time being (which may include an overnight interruption) take the employee out of the course of his employment.

Return journeys are to be treated on the same footing as outward journeys.

All the foregoing propositions are subject to any express arrangement between the employer and the employee or those representing his interests. They are not, I would add, intended to define the position of salaried employees, with regard to whom the touchstone of payment made in the employer's time is not generally significant".

Mr. McCleod emphasised propositions 2 and 3. The claimant had been deployed from Thurmaston to Loughborough, and although, in Mr. McCleod's submission, he could have first gone from his home to Thurmaston, and travelled from there to Loughborough each day in the employer's time, in which event he would clearly have fallen within proposition 2, it made no difference that for convenience he travelled direct from his home to Loughborough. This view is, I think, reflected more aptly in proposition 4. Of course, the crucial point was whether or not the claimant was at the time of the accident actually travelling in the employer's time. To show that he was, Mr. McCleod relied on proposition 3. According to him, the claimant was at the relevant time in receipt of wages. He contended that the flat rate allowance paid to the claimant for travelling from the claimant's home to Loughborough consisted of two elements: £9.14 per night which was in respect of travelling time and as a result subject to income tax, and £5.08 per night in respect of subsistence and travelling expenses which was not taxable. This was apparent from the BT Gazette notice and the THQ circular, which were before the tribunal. (Incidentally I was shown two other documents dated respectively 26 April 1990 and 27 April 1990, but as these were not before the tribunal I do not think I can take them into account for the purposes of determining whether the tribunal erred in point of law. The tribunal cannot be criticised for misconstruing the effect of documents never put before them.) Mr. McCleod's submission was that the way in which the flat rate allowance was arrived at indicated that the claimant was in receipt of wages throughout the relevant period, and as a result was in the course of his employment.

Mr. Conridge contended that the flat rate allowance was nothing more than "a travelling allowance" within proposition 3 of Lord Lowry's observation. He drew my attention to the letter dated 30 September 1987, and in particular the answers to the questions raised in the letter of 2 September 1987 under heads 4 and 5:

"4. [The claimant's] contractual hours are 0800 to 1600, but he always worked 0800 to 1700 and these were considered his normal hours. On the day of the accident he worked overtime until 1825. He received a flat-rate allowance for working away from his normal headquarters and was not entitled to travelling time, flexi-time or time off in lieu.

The daily rate for flat-rate allowance is £9.14 taxable and £15.08 non-taxable, payable when an engineer travels to his place of detached duty in his own time and at his own expense. £1.30 per day is payable as subsistence when working away from his normal headquarters."

Although it was not a document before them, I note that the letter from British Telecom dated 26 April 1990 confirms what was said in a letter of 30 September 1987. The second paragraph reads as follows:

"The flat-rate allowance paid to [the claimant] was a standard payment made to an engineer who travels to his place of detached duty [in] his own time and at his own expense."

Further, although the written submissions on behalf of the claimant dated 5 July 1989 were, of course, not before the tribunal, it is interesting to note that, in explaining how the flat-rate allowance was arrived at, it is there submitted that "both these are averages for the country as a whole". The word "averages" is significant.

In my judgment, it is quite clear that the flat-rate allowance was arrived at on the basis of an agreed formula. It took into account as one element the time taken in travel, but it was still an arbitrary allowance. There was no attempt to calculate precisely how much time was taken in the present instance by the claimant, still less was there any implication that the claimant was, throughout the travelling time taken getting to and from Loughborough, being specifically paid by his employer.

But, even if the claimant had been paid by his employer during the period in which he was travelling to and from Loughborough, it did not necessarily follow that this in itself meant that he was in the course of his employment. This is made clear by Lord Goff of Chieveley who in Smith v. Stages said at page 534:

" . . the fact that a man is being paid by his employer in respect of the relevant period of time is often important, but cannot of itself be decisive. A man is usually paid nowadays during his holidays; and it often happens that an employer may allow a man to take the afternoon off, or even a whole day off, without affecting his wages. In such circumstances, he would ordinarily not be acting in the course of his employment despite the fact that he is being paid. Indeed, any rule that payment at the relevant time is decisive would be very difficult to apply in the case of a salaried man. Let me however give an example concerned with travelling to work. Suppose that a man is applying for a job, and it turns out that he would have a pretty arduous journey between his home and his new place of work, lasting about an hour each way, which is deterring him from taking the job. His prospective employer may want to employ him, and may entice him by offering an extra hour's pay at each end of the day, say ten hour's pay instead of eight. In those circumstances he would not I think, be acting in the course of his employment when travelling to or from work. This is because he would not be employed to make the journey: the extra pay would simply be given to him in recognition of the fact that his journey to and from work was an arduous one."

I have no doubt that in the present case the claimant was not even in receipt of wages whilst travelling, let alone actually in employer's employment. But, be that as it may, the issue is not what I think, but whether the tribunal erred in point of law. I am satisfied that on the evidence the tribunal were entitled to reach the conclusion, for the reasons given by them, that at the relevant time the claimant was not in the course of his employment, and that is the end, of the matter. I am satisfied that it could not be said that no tribunal acting judicially could have reached the decision which is now the subject matter of appeal. Accordingly I have no hesitation in dismissing this appeal.

For completeness I should say that, in his submissions to me, Mr. Conridge suggested that by virtue of a long lapse of time since the claimant had been on so called detachment to Loughborough, some six month's had transpired, it could no longer be said that his normal place of employment was at Thurmaston. The work there was permanent, and subject only to the claimant's satisfying his employer that he was capable of doing the job he was going to be permanently located there. I am, however, somewhat doubtful about the force of this submission, particularly as the employer appears to have treated the claimant as being throughout merely on detachment, but in any event it is unnecessary for me to consider this aspect of the case. For the reasons already given, I am satisfied that the tribunal were entitled to reach the conclusion that the claimant was at the relevant time not in the course of his employment, and it follows that in any event this appeal necessarily fails.

Date: 6 June 1990 (signed) Mr. D. G. Rice

Commissioner