Appeal No.	 EAT/107/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 March 2002

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MR I EZEKIEL
MR N D WILLIS

MR A ROBERTSON	APPELLANT

ROCKWARE GLASS LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR BRUCE CARR
(of Counsel)
Instructed by:
Messrs Rowley Ashworth
Solicitors
247 The Broadway
Wimbledon
London SW19 1SE	
For the Respondent	MR ASHLEY SERR
(of Counsel)
Instructed by:
Messrs Eversheds
Cloth Hall Court
Infirmary Street
Leeds LS1 2JB	

MR JUSTICE LINDSAY (PRESIDENT)

1	We have before us by way of a full hearing the appeal of Mr A Robertson in the matter Robertson -v- Rockware Glass Limited.  Today, Mr Robertson appears by Mr Bruce Carr and the Respondent, Rockware Glass, by Mr Ashley Serr.  

2	On 19 July 2000, Mr Robertson lodged an IT1 for failure to make a contractual payment.  He identified a union representative as acting for him.  It seems that he had been away, certificated sick for a while, and that on 21 February 2000 he had returned to work.   His IT1 said:
“On the 25 February 2000 an investigation meeting was held and along with my representative I attended a meeting with the Personnel Manager Mr Pyle.  His decision was that for my fourth week of sickness I would receive only SSP.  
I registered an appeal against this which was heard on 5 April 2000.  
The outcome of this is that the company has failed to honour my contract of employment in
1)     Not obtaining the views of an independent medical person in order to assess my case.
2)     That I must use three days of my holiday entitlement instead of the self certification I would normally have used at the start of a period of incapacity.
3)     That the company applied company sick pay to my period of incapacity therefore there is a shortfall of £281.”

Well, the case rather changed as it went forward, but that was how it began.  

3	On 7 August the company put in an IT3 that painted a rather different picture.  The company said that:

“2.  On 24 January 2000, Mr Robertson telephoned his manager, Mr A Neale, informing him that he was upset but could not specify the reasons.  Mr Neale agreed with the Applicant that he could take that day and the following day as holiday.  On 26 January 2000, the Applicant telephoned Mr Neale and asked to extend his holiday for the remainder of the week.  Mr Neale agreed to this.  The Applicant received holiday pay for the whole of the week commencing 24 January 2000 and it is denied that he is entitled to sick pay for this week.  Under the terms of the Respondent’s sick pay scheme, an employee is not entitled to receive sickness benefits for any day which they receive holiday pay.”

The IT3 goes on:
“3.  The Applicant attended work on Monday 31 January 2000, attended surgery and asked to be sent home.  He submitted a doctor’s sick note for two weeks absence for depression.  The Applicant received company sick pay for this period of absence.  
4.  On 8 February 2000, the Applicant was examined by the Respondent’s medical adviser whom advised the Company that he agreed with the Applicant’s GP that he should remain off work for the two weeks indicated by the Applicant’s GP.  The medical adviser did however comment that the Applicant’s condition would be better served if he returned to work after the two weeks sickness absence.” 

4	On 14 February Mr Robertson was told that, so far as it seems from the IT3, that the sick note that he had tendered to cover absence after Monday 14 February would not be accepted, given the Respondent’s own doctor’s advice that we have just cited, namely that:
“  the Applicant’s condition would be better served if he returned to work after the two weeks sickness absence.”
And going on from that, that he would not be paid company sickness pay for the week 14 February - 18 February.  

5	He therefore got Statutory Sickness Pay only for the week 14 February - 18 February.  There was (as we have seen to be alleged), an investigatory meeting after he returned, and an appeal but that the decision to pay only Statutory Sickness Pay for the period 14 - 18 February was upheld.  That was the way that the claim and counterclaim, so to speak, were shaping up.  

6	On 9 November there was a hearing at the Employment Tribunal, Mr Robertson was represented by his union representative and the hearing - and this is one of the points that gives rise to an issue - was before a Chairman alone.  On 22 November 2000, the Decision was sent to the parties.  It was the Decision of the Chairman alone, Mr G R Little, and it is expressed as being unanimous, which is comforting.  It said:-
“The unanimous decision of the tribunal is that the applicant’s complaints fail and are hereby dismissed.”

7	On 3 January of last year there was a Notice of Appeal.  On 15 June of last year there was a preliminary hearing at the Employment Appeal Tribunal and, as part of the Order of that day, the Appeal Tribunal said:-
“THE TRIBUNAL FURTHER ORDERS that the Appellant do lodge with the Employment Appeal Tribunal such evidence as he sees fit regarding the issue of the Chairman sitting alone within 14 days of the seal date of this order
THE TRIBUNAL DIRECTS that the Employment Appeal Tribunal do enquire of the Employment Tribunal as to the circumstances in which the decision was made for the matter to be heard by a Chairman sitting alone.”

8	On 25 June of last year, the Chairman, by letter, made his comments on the issue of sitting alone.  On 2 July, Mr Croft, the Union officer who had appeared at the Employment Tribunal on behalf of Mr Robertson, put in a statement on the subject of the Chairman sitting alone and it is quite plain that the subject of whether it sufficed for the Chairman to sit alone. was never raised with the Chairman or with the Employment Tribunal.  

9	There is no appeal as to such part of the case as concerned holiday pay or a holiday period, but two grounds are raised which can be described as substantive in one case and procedural in the other.  The substantive question is whether the Chairman correctly construed the company’s sickness benefit provisions and the procedural issue is whether the Chairman erred in law in hearing the case on his own.  We have so far heard argument only on the substantive issue and we indicated that we would give judgment on that before considering how to move further with the case, and that course was not opposed.  

10	So we turn to construction of section 4(3) of the company’s rules as to absence procedure.  We begin by stating that, as common ground between the parties before us, it has been common ground that, in point of contract, Mr Robertson is to be regarded as entitled to company sick pay unless and to the extent that some provision limits that or takes it away from him.  Mr Serr has not opposed that approach and there does not seem to have been any contest below on that either, although we are bound to say that we have not actually seen the contract that gives rise to that right in Mr Robertson.  

11	Looking at the company’s absence procedures, one begins by looking at the introduction which says:
“However, in all cases involving absence, sufficient enquiry should be made to enable a decision to be made and each case is determined on its own merits.  Proper investigation and consultation with the employee is essential before any action is taken.”

Then one has a heading: “Section 1 - Absence Due to Long Term Illness or Capacity”
(“long term” is not defined):  
“Full consultation “
it reads
“will take place with the employee and his/her representative before any action is considered.  Normally, consideration will not be given with regard to future employment prospects before 26 weeks absence have occurred.”
Still under that heading it said:
“in circumstances where there may be conflicting medical evidence, the Company may request the employee to undergo an independent medical examination.  All reasonable expenses incurred by the employee will be re-imbursed and the Company will make the necessary arrangements in these cases.”
So much for that first heading.  

12	There is then, headed “Section 2 - Other Absences”,  a series of provisions which begin:
“Employees may be granted extended leave of absence to visit close relatives in their countries of origin or close relatives who may have emigrated to other countries”
but there is nothing of interest there. Then, in a third passage headed: “Section 3 - Frequent and Persistent Short Term Absenteeism”,  one finds this, immediately under that heading:
“This definition applies to persistent periods of absence.  This includes:
-	self-certified absence
-	medically certified absence
-	unauthorised absence
but excludes holidays, days in lieu, and other authorised absence (e.g. public duties, jury service).
As a guideline this is defined as any of the following:
-	3 or more spells of absence in 8 weeks
-	4 or more spells of absence in 13 weeks
-	5 or more spells of absence in 26 weeks
-	6 or more spells of absence in 52 weeks.
(This does not imply that disciplinary action will automatically be triggered given the above periods of absence but that an investigation will take place).
And then below that, a little later, it says:
“If the guidelines are met, then the following procedure will be used and at all stages in the procedure, the following principles will be observed:”
Mr Robertson had been away, at most, for only two spells and his absence never fell within the definitions of “frequent and persistent short term absenteeism”.  

13	As for the procedures in cases of frequent and persistent short term absenteeism, the procedures included the use of investigation by way of a company or occupational doctor, where, despite the employee’s own doctor’s certificate being produced, there was nonetheless, a doubt about the reason for the absence.  But it was not suggested at the Tribunal below that section 3 was applicable or that its detailed procedures were followed, but section 4, headed “Sick Pay” was what the parties, rightly, concentrated on, both below and here.  The passage begins:
“In accordance with the DHSS guidelines of Statutory Sick Pay, the Company will apply the following procedure:”
One is bound to observe that, at least in part, the procedures that follow are unconcerned with Statutory Sick Pay, and it does make one wonder how carefully the matter was drafted in the first place, but that we need not go further into.  

14	Three types of absence are dealt with and first it says:
“1) After 4 periods of self-certified absence (of 4 days or more) in a period of 12 months, the Company will advise the individual concerned that any further period of absence may result in Company and statutory sick pay being suspended.  The Company will advise the DHSS of the situation in relation to SSP.”

That did not apply in Mr Robertson’s case, but it is to be noted that it would seem to be triggered where there has been an absence of, cumulatively, at least sixteen days.  Then, marked 2), one finds this:

“After 5 periods of self-certified absence (of 4 days or more) the Company will:
Suspend Company sick pay, suspend payment of SSP and refer the question of payment to the DHSS, if reasons for incapacity are not accepted.  In these cases the employee will be given a written statement confirming the reasons why sick pay has been withheld.”

Curiously, the reference to “in a period of 12 months” which one found in 1) is not found in 2). Whether that is intentional or not is not for us to decide but it would seem that under the 2) heading that what is contemplated is an aggregate absence of at least twenty days.  

15	Then we come to 3), which is the real battleground.  It provides as follows:
“In cases of prolonged absences”
 [and it is absences, plural] 
“where the Company suspects there are no longer good reasons for continued absence, the Company may refer the individual to the Company Doctor and/or DHSS medical advisers to obtain a medical assessment (with the employee’s consent).  Having considered these views, the Company may suspend Company sick pay/SSP where it is considered that the employee no longer has a good reason for continued absence.”

It was this passage that attracted the Chairman and which he construed.  He held, in point of fact, that the absence from 26 January to 28 January was taken as holiday by way of an agreement, after the two first days of that week, Monday 24 January and Tuesday 25 January, had been taken as sickness absence.  There was then a weekend, 29 - 30 January.  On 31 January, the Monday, Mr Robertson attended, but only briefly and was soon sent home sick, so that to all intents and purposes 31 January was a day of sickness absence, and then there was absence continuously until 11 February.  That period down to 11 February was not, in medical terms, in any doubt, because the Respondent’s own doctor, Dr Berry, having seen Mr Robertson, thought that that absence down to the 11th was in order.  The Tribunal held:
“On 8 February the applicant was seen by the company’s doctor, Dr Berry and Dr Berry agreed that it would be in order for the Applicant to have the 2 weeks absence that he was currently taking.”

16	However, on Monday 14 February, Mr Robertson remained absent but produced his own doctor’s certificate for the further week, running down to 18 February, and the Chairman at the Employment Tribunal held:
“At that stage the respondents took the view that they would not pay the enhanced company sick pay for that period.”
And a little later:
“The Respondents remained adamant that they would not pay company sick pay, statutory sick pay was deemed to be payable for that period.”

17	The Chairman turned to the absence rules and he said:
“Having read the document and given it careful consideration it is my view that Section 4 does stand on its own and that clearly the applicant does not, by concession, fit into any of the other three sections in any event.  On that basis it is my view that section 4(3) does apply to his case.  This provision says that where there is a case of prolonged absence and the company suspects there are no longer good reasons for continued absence the company may refer the individual to the company doctor.  That clearly is what happened in this case.  The provision goes on to say that having considered the views of the company doctor the company may suspend company sick pay and/or statutory sick pay where it is considered that the employee no longer has a good reason for continued absence.  It seems to me that this is the procedure which the respondent followed in this case.”

So far as concerns the construction of that paragraph 4(3), Mr Carr in his outline written submissions makes detailed submissions as to the proper construction, and with some modest amendments which we shall make as we go ahead, we, broadly speaking, accept that construction.  

18	He begins by saying that on a proper construction of 4(3) the following sequence should occur before the Respondent is properly able to suspend the payment of sick pay.  Firstly, there must have been a period of prolonged absence.  To that we would add the word “actual” before prolonged and absence.  There must have been, therefore, a period of prolonged actual absence.  Secondly, the company must suspect that there are no longer good reasons for that continued absence, he says, and again, we would add the word “actual” just to underline that it is actual absence that is relevant.  

19	Next he says the company must then refer the individual to the company doctor for a medical assessment.  We would amend that only slightly by saying that if company sick pay is in issue, the company may then refer the individual to a company doctor to obtain a medical assessment, if it wishes to proceed further with the procedure.  

20	Then, next, he says:
“Having obtained that assessment the company should consider the assessment and may suspend sick in the event that it concludes that there was no longer good reason for continued absence”
It should read:
 “should consider the assessment and may suspend company sick pay in the event that it concludes that there was no longer good reason for continued absence”
We regard that as the correct construction of section 4(3).

21	Mr Serr argues that the reference to prolonged absences includes cases where there is not yet an actual absence describable as prolonged but where, prospectively, the absence is likely to be long (for example, where a medical certificate of long prospective duration has been presented) and that it suffices, therefore, that there need not be an actual absence at any given moment but that a prospective prolonged absence justifies the working through of the 4(3) procedure.  We take the view that absence means actual absence.  Mr Serr was not able to point to anywhere else in the rules where absence meant other than actual absence and if prospective absence was to be included in the reference to the double references to “continued absence” that would lead to further drafting difficulties.  We see no warrant for the substantial re-writing of 4(3) for which Mr Serr argues, and accordingly, we reject his construction.  

22	Mr Robertson attended at the company’s surgery on 31 January.  He was referred to the company doctor on 4 February and was actually examined by him on 8 February.  On 8 February he was, so to speak, cleared by the company doctor to stay away until 11 February and on the 14th, he provided his own doctor’s certificate that carried him down to 18 February.  The Tribunal said:
“The respondents believed that the applicant would return at the end of that 2 week period but in fact on 14 February 2002 a further doctor’s certificate was received from the applicant in which it was said that he would be taking one further week of sick leave.”

As at 31 January, which was a Monday, Mr Robertson had been away only on 24 and 25 January in the preceding week, by way of absence on the grounds of sickness.  The rest of that week had been taken as holiday.  On 8 February, he had been away since 31 January, which is six working days.  

23	It is impossible, in our view, to see this timetable as part of a due working-through of section 4(3), as at the point of referral to the doctor, as to which the Tribunal Chairman made no specific finding, but which is agreed by the parties to have taken place on 4 February.  There cannot have been more than five working days absence for sickness, namely 24 and 25 January and 1, 2 and 3 February.  Whilst “prolonged absence” is not defined it is not, in our view, possible to read it, in the context either of all the procedures or of all the sick pay procedures, as descriptive of so short a certified absence.  It is not for us to define “prolonged” where the parties have not themselves chosen to do so, and Mr Serr, in fact, asserts that it was a deliberate omission, but we do hold that there had not been a prolonged absence in this case.  

24	Moreover, whilst one can readily see that 4(3) is not a comprehensive and adequate protection against fraudulent or unjustified absences on sickness, or apparent sickness, grounds, it is not for us to seek to create some provision other than that which the parties must be taken to have agreed.  

25	Mr Robertson’s position, it may be noted, would not even have fallen within the description of a frequent and persistent short term absence within the rules.  Moreover, given that as at 8 January, the company’s own doctor regarded absence down to 11 February as explained and acceptable on medical grounds and that Mr Robertson had, at the 8th, not yet asked for the further week from 14 - 18 February, it is impossible to see how, at the point of referral on 4 January, the company could have suspected that there was no longer good reason for continued absence.  

26	Further yet, the company cannot have considered a medical view obtained after a referral made after a prolonged absence as no such view ever came into existence.  We are driven to hold that the Tribunal Chairman erred in law when he held that section 4(3) applied on account of there having been a prolonged absence such as to have allowed a referral to the company doctor on the ground that the company suspected that there was no ground for continued absence.  He erred also, in our view, in holding that the 4(3) procedure had been followed in the case.  

27	That being so, it seems to us that the case must either be remitted to an Employment Tribunal or decided by us here and now.  As for remission, it would be ridiculously disproportionate when only some £281 is in issue between the parties.  Moreover, as at present advised, we have seen no other defence to the £281 other than that which we have found not to be of substance.  We shall hear the parties, I hope, relatively briefly, on precisely where we should go next, but at first blush, it would seem that the appropriate solution is that we award £281, or whatever the particular appropriate sum would be, here and now to Mr Robertson.  

28	On that footing, and having found in Mr Robertson’s favour on the substantive issue, the procedural point does not arise, and, indeed, rather than taking up time dealing with it, the parties’ time would be better spent negotiating a rather better thought-through sickness pay set of provisions.