49 Knight v Northern Ireland Housing Executive (Pre-Hearing Review) [2004] NIIT 251_03 (13 September 2004)

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 251/03

    APPLICANT: Margaret Knight

    RESPONDENT: Northern Ireland Housing Executive

    DECISION ON A PRE-HEARING REVIEW

    The unanimous decision of the tribunal is that the applicant's contentions have no reasonable prospect of success and the tribunal requires her to pay £150.00 as a condition of her being allowed to continue to conduct these proceedings.

    Appearances:

    The applicant appeared in person.

    The respondent was represented by Ms F Cassidy, Solicitor of Jones & Cassidy, Solicitors.

  1. By her Originating Application, presented on 4 February 2004, the applicant stated that she had been employed from 31 October 1974 to "present". Section 11 of the Originating Application, which asked the applicant to state the type of complaint/s she wished the tribunal to decide, referred to section 13 of the form. Section 13 was completed by the applicant in the following terms:

    2. "My employer has failed to carry out their statutory responsibilities as outlined in their Health & Safety Manual "Stress in the Workplace" resulting in a breakdown of my health and enforced absence from work under medical supervision since 15 August 2001 until present day. Furthermore, they are in breach of contract in that they have filed to pay me my entitlement as agreed with the Union by collective agreement and so have made a deduction from my salary."

  2. The respondent presented a Notice of Appearance on 13 March 2004, whereby it denied any breach of contract, and stated:-

    3. "The respondent does not understand the nature of the applicant's health and safety claim in the context of a tribunal application.

    The respondent believes the applicant's allegations may have no reasonable prospect of success and upon receipt of particulars of her allegations the respondent believes it may seek a pre-hearing review".

  3. Before us, the applicant conceded that she was not alleging any form of unlawful discrimination, and had never been an employee representative within the meaning of the Part VI of the Employment Rights (Northern Ireland) Order ["the 1996 Order"].

  4. Since she was still employed on the date of the presentation of the complaint, the applicant conceded that she could not assert a breach of contract by the respondent.

  5. In respect of her assertion in section 13 of her Originating Application, the applicant stated that she considered she had suffered a personal injury (work-related stress) as a result of the respondent's actions. In this regard, the applicant submitted that by her reference in section 13 of the Originating Application to the respondent's "statutory responsibilities" she was referring to the document entitled 'Stress in the Workplace'.

  6. The applicant's submissions were centred on the assertion of an unlawful deduction from wages, which she stressed was what she intended her complaint to be about. In this regard, the applicant's citation of a collection agreement is a reference to what the parties called the 'Green Book', which is produced by the National Joint Council for Local Government Services. Section 10 of the Green Book relates to the respondent's sickness scheme. Sections 10.1 – 10.3 of this document states that:

    7. 10.1 The scheme is intended to supplement Statutory Sick Pay and Incapacity Benefit so as to maintain normal pay during defined periods of absence on account of sickness, disease, accident or assault.

    10.2 Absence in respect of normal sickness is entirely separate from absence through industrial disease, accident or assault arising out of or in the course of employment with a local authority. Periods of absence in respect of one shall not be set off against the other for the purpose of calculating entitlements under the scheme.

    10.3 Employees are entitled to receive sick pay for the following periods:

    After 5 years service – 6 months full pay and 6 months half pay
    Authorities shall have discretion to extend the period of sick pay in exceptional cases.
  7. The applicant's case is that she received six months full pay, and six months half pay from the date she went on sick leave, 15 August 2001, which reckoned the periods of absence in that employment year up to that date. Her central contention is that she should have received full pay for the second six months of her sick leave. The applicant contended that she had heard that the respondent had always paid other people, who were off on sick leave, their full pay for one year. However, she conceded that she had no direct knowledge or experience of such a departure from section 10.3 of the Green Book. She conceded that she had no other authority to cite in support of her contention that she should have received full pay for the entire first year of her sickness absence, and that section 10.3 provided a contractual entitlement to six months full and six months half pay only. Moreover, whilst she felt that she had suffered the effects of an industrial accident (work-related stress); the applicant could not explain to the tribunal how anything in section 10 of the Green Book would thus entitle her by contract to one year's full pay whilst on sick leave.

  8. In respect of the discretionary provision at the conclusion of 10.3 of the Green Book, Ms Cassidy asserted that this power had been invoked on only one occasion, and applied in favour of an employee who had been assaulted and shown exceptional bravery in resisting same. Thus, the respondent contends that there is no violation of Part IV of the 1996 Order.

  9. The applicant stated that she had no difficulty in paying any deposit up to £500.00.

    10. The Decision of the Tribunal on a Pre-Hearing Review:

  10. Having considered the contentions and submissions put forward by the parties, the tribunal unanimously determines as follows:-

    11. (a) The Industrial Tribunal (Constitution & Rules of Procedure) Regulations (Northern Ireland) 1996 were superseded by the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (Northern Ireland) 2004 [SR: 2004 No 165] on 4 April 2004 ("the 2004 Rules"). This decision of the tribunal on a Pre-Hearing Review is made pursuant to Rule 7 of Schedule 1 to the 2004 Rules.

    (b) Since the applicant was still employed on the date of presentation of the Originating Application, 4 February 2003, she is precluded from asserting a breach of contract by Article 3(c) of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994. This point was conceded by the applicant.

    (c) The applicant's reference in her complaint to the respondent's breach of health and safety provisions is a reference to the Health & Safety at Work document, which has no statutory force. The applicant was at no time an employee health and safety representative or agent, and there is nothing in her submissions that has persuaded the tribunal that she would fall within Part VI of the 1996 Order. In this regard, the tribunal determines that the applicant's contentions have no reasonable prospect of success.

    (d) Part IV, Article 45(3) of the 1996 Order provides, "where the total amount of wages paid on any occasion by an employer to a worker … is less than the total amount of the wages properly payable by him … the amount of the deficiency shall be treated for the purposes of this Part as a de4duction made by the employer from the worker's wages …". The applicant has not persuaded the tribunal that the respondent should properly, or by contract, have paid her twelve month's full pay whilst on sick leave or that she was entitled to the benefit of the discretion provided by section 10.3 of the Green Book. The applicant has not satisfied the tribunal that she could comply with the requirements of Part IV of the 1996 Order. In this regard, the tribunal determines that the applicant's contentions in respect of unlawful deductions from wages have no reasonable prospect of success.

    (e) Further to our determination at 10(d) above, and pursuant to Rule 7(4) of Schedule 1 to the 2004 Rules, the tribunal hereby orders the applicant to lodge a deposit of £150.00 as a condition of being permitted to continue to conduct these proceedings.

    (f) By Rule 7(7) of Schedule 1 to the 2004 Rules, if the applicant has not paid the deposit of £150.00 within 21 days of the day on which this decision is sent to her, the tribunal shall strike out the Originating Application.

    (g) Pursuant to Rules 14(7)-(8) of the 2004 Rules, if the applicant persists in conducting this complaint, and an industrial tribunal on hearing the substantive complaint, finds against her, the applicant may lose her deposit and may also have an award of costs made against her.

    (h) No further or other Order is made.

    Chairman:

    Date and place of hearing: 13 September 2004, Limavady

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2004/49.html