THE INDUSTRIAL TRIBUNALS

CASE REFS:  5717/18
5719/18

CLAIMANTS:		Derek Marshall
Ian Falconer

RESPONDENT:		Caterpillar (NI) Limited

DECISION

The tribunal unanimously concludes that:

(1)	The claimants were not medically suspended from work within the meaning of Article 96 of the Employment Rights (Northern Ireland) Order 1996;

(2)	The respondent made an unlawful deduction from the wages of Derek Marshall.  The respondent is ordered to pay to him the sum of £238;

(3)	The respondent did not make an unlawful deduction from the wages of Ian Falconer.  His claim is therefore dismissed in its entirety.

Constitution of Tribunal:

Employment Judge:	Employment Judge Browne

Members: 	Mr P Laughlin
	Mrs D Adams

Appearances: 

The claimants were represented by Mr Friel, Barrister-at-law, instructed by Donnelly & Kinder, solicitors.

The respondent was represented by Ms McGinley, of EEF Northern Ireland.

ISSUE

The issue in these cases was whether the claimants were medically suspended from work within the meaning of Article 96 of the Employment Rights (Northern Ireland) Order 1996, or whether an unlawful deduction from their wages was made under Article 45 of the 1996 order. 

Article 96 states:

“96.—	(1)	An employee who is suspended from work by his employer on medical grounds is entitled to be paid by his employer remuneration while he is so suspended for a period not exceeding twenty-six weeks.

	(2) 	For the purposes of this Part an employee is suspended from work on medical grounds if he is suspended from work in consequence of —

(a)	a requirement imposed by or under any statutory provision, or

(b)	a recommendation in a provision of a code of practice issued or approved under Article 18 of the [1978 NI 9.] Health and Safety at Work (Northern Ireland) Order 1978, and the provision is for the time being specified in paragraph (3).

(3) 	The provisions referred to in paragraph (2) are —

●	Regulation 2 of the [SR&O 1913 No. 2] Manufacture and Decoration of Pottery Regulations 1913,

●	 Regulation 25 of the Ionising Radiations Regulations (Northern Ireland) 2017 [S.R. 2017 No. 229],

●	Regulation 16 of the [SR 1986 No. 36.] Control of Lead at Work Regulations (Northern Ireland) 1986,

●	Regulation 11 of the [SR 1995 No. 51.] Control of Substances Hazardous to Health Regulations (Northern Ireland) 1995. 

(4) 	The Department may by order add provisions to or remove provisions from the list of provisions specified in paragraph (3).

(5) 	For the purposes of this Part an employee shall be regarded as suspended from work on medical grounds only if and for so long as he -

(a)	continues to be employed by his employer, but

(b)	is not provided with work or does not perform the work he normally performed before the suspension.”

Article 45 states:

	“Right not to suffer unauthorised deductions

45.—	(1) 	An employer shall not make a deduction from wages of a worker employed by him unless —

(a)	the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or

(b)	the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) 	In this Article “relevant provision”, in relation to a worker's contract, means a provision of the contract comprised —

(a)	in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b)	in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) 	Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.

(4) 	Paragraph (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

(5) 	For the purposes of this Article a relevant provision of a worker's contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(6) 	For the purposes of this Article an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified

(7) 	This Article does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.”

EVIDENCE AND FACTS FOUND

1.	Both claimants are employed by the respondent as paint specialists in its Larne plant.

2.	On 24 January 2017, both claimants separately attended routine health examinations with the respondent’s Occupational Health (“OH”) nurse.  In both cases, she certified them to be fit for all aspects of their work, apart from working at heights, due to a concern she had in relation to each claimant due to their blood pressure readings.

3.	She told them to carry on as normal, but to return the following day, to re-check their blood pressure readings.

4.	Upon checking these readings on 25 January 2017, the nurse still had concerns about their blood pressure readings.  She therefore emailed their line manager, Mr Alan Bannister, outlining those concerns.

5.	Mr Bannister then spoke to the claimants separately and told them to leave the premises immediately, and not to return until they had been certified as suitable to work by the respondent’s OH doctor.  That process would usually take around two months.

6.	Mr Bannister’s approach was that both men worked at heights in their specialist role, and that the nurse’s concerns therefore precluded them from continuing in it.

7.	Without rehearsing the evidence, there was no meeting of minds between the parties as to the propriety of the action taken by the respondent. 

8.	It was the claimants’ contention that the respondent ought not to have acted in this way immediately.  In their view, there was a query by them as to the accuracy of the equipment used; and, as the OH nurse was not medically qualified, the respondent ought to have investigated further without taking the action of immediate suspension.  It was also advanced on their behalf that other work should have been available within its organisation.

9.	The respondent’s approach was that it was entitled to rely upon the OH nurse’s initial assessment, and that even working at a modest height off the ground constituted “at height”, and therefore would cause a potential danger to the claimants.  It was also their evidence that there was no comparable type or level of work available.

10.	Mr Marshall was sent home on a “half-day pass out”, which was unpaid, and thereafter claimed and was paid sickness absence.  The respondent’s sickness pay policy stipulates that the first three days’ absence are unpaid “waiting days”, but the remainder of sickness up to twenty-six weeks’ absence is paid at full pay.  Mr Marshall managed to obtain certification through his own GP that he was fit to return, and did so on 19 February 2017.

11.	Mr Falconer had previously been off on sickness absence and was erroneously of the view that he was no longer entitled to sickness pay.  He therefore applied for and was granted permission to use his contractual holiday entitlement to cover his absence from work.  He obtained fitness certification from his own GP, and returned to work on 7 February 2017.

12.	The tribunal concludes from the evidence that it was reasonable for the respondent to conclude that there was a clear possibility of harm to the claimants if they had been permitted to continue to work at height, however modest that might have been. 

13.	Whilst the OH nurse was not as highly medically qualified as a doctor, the tribunal considered that it was entirely appropriate in discharging her duty to raise the issue of a suspected high blood pressure reading and its attendant potential with the claimants’ line manager.  It then was within his responsibility to decide what action was appropriate while waiting for a doctor’s opinion.

14.	There was very poor communication from the respondent to the claimants, as a result of which they reasonably felt stigmatised about their treatment.  The issue in this case is not however the propriety of the action of the respondent in sending the claimants home.  Rather, it is the effect upon them as regards payment during that period.

15.	The tribunal concludes that the circumstances of this case fall outside the scope of Article 96 of the 1996 Order.  That legislation appears to refer to a situation in which the employee requires to be caused to be sent home from his workplace due to an inherently dangerous situation brought about by the employer, such as the presence of a hazardous substance.

16.	The current case arises from an issue whereby the respondent, through its OH section, identified a health characteristic of each claimant which had the potential to cause harm to those individuals, and potentially to their colleagues, if the respondent permitted them to continue working in their usual roles.  The tribunal could find no evidence that appropriate measures were not taken to identify other suitable work within the respondent’s organisation.

17.	As such, the tribunal concludes that the claimants were not medically suspended from work within the meaning of Article 96.

18.	That then leaves the issue of unlawful deduction of wages.  The tribunal concluded that the non-payment of the half day on 25 January 2017 and the first three days of sickness absence as “waiting days” from Mr Marshall’s pay were a deduction from wages.  The question of its lawfulness therefore depends upon whether or not it constitutes a part of the claimant’s contract.

19.	The situation in this case does not appear to the tribunal to have been anticipated by the respondent when the policy was drafted, and cannot in the view of the tribunal be properly inferred from its contents. 

20.	The tribunal therefore concludes that it cannot properly be construed as part of his contract.  In the absence of any other implied or other consent on his part, the tribunal concludes that it was done on both occasions (namely, the unpaid half day on 25 January and the three waiting days’ deduction) without lawful authority, and each was an unlawful deduction for the purposes of Article 45.  The respondent is therefore ordered to pay to Mr Marshall the sum of £238, representing those 3.5 days’ nett pay. 

21.	In the case of Mr Falconer however, it was his erroneous view that his sickness pay entitlement had expired.  He made no attempt to clarify the situation with the respondent, and it was his decision to apply for holiday leave instead.  Had he enquired from the respondent’s HR section, he would have discovered that he was in fact entitled to sickness pay.  In the event, however, there was no deduction from his wages, and his case is dismissed. 

22.	It is a matter for the discretion of the respondent, if, in all the circumstances surrounding this case, it decides to remedy Mr Falconer’s financial situation or to give him additional days’ holiday as a gesture of good will.   

23.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Employment Judge:

Date and place of hearing:	14 November 2018, Belfast.

Date decision recorded in register and issued to parties: