Appeal No. EAT/1326/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 September 2002

Before
MR RECORDER UNDERHILL QC
MR P DAWSON OBE
MR J C SHRIGLEY

MS H G MARCELLE	APPELLANT

WESTMINSTER CITY COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR NECKLES
TU Official
Public Transport Staff Consortium (PTSC)
31B Mervan Road
Brixton
London SW2 1DP	

MR RECORDER UNDERHILL QC

1.	We propose to allow this appeal to proceed to a full hearing.

2.	In very brief terms the facts are as follows.  The Appellant was employed as a legal secretary by the Respondent.  She remains an employee.  Her contract of employment incorporated terms derived both from the Greater London Whitley Council and from the National Joint Council for Local Authorities Services.  The Tribunal found that her contract indicated that the NJC Agreements would cover inter alia sickness payments and the Whitley Council agreements would cover inter alia allowances to employees injured in the course of their employment.  She suffered repetitive strain injury.  She received payment in full for twelve months under the Injury Provisions incorporated from the Whitley Council.  She now claims to be paid benefit under the Occupational Sick Pay Scheme derived from the National Joint Council, following the expiry of the twelve months injury pay.  She puts her arguments two ways.  She says either that the Contractual Sick Pay Scheme is to be understood to kick in as soon as the entitlement under the Injury Scheme is excluded, or in any event she claims entitlement to sick pay under the provisions of the Respondent’s redeployment scheme.
 
3.	What the Tribunal was essentially faced with was a pure question of contractual construction based on how various contractual provisions interrelated.  We have not found it entirely easy to assess either the Tribunal’s reasoning, or the submissions of Mr Neckles who appears for the Appellant as he did below, without having sight of the contractual documents themselves.  This is not necessarily a criticism either of the Tribunal or of Mr Neckles, but the provisions are complicated and their inter relationship cannot easily be determined merely from the terms as recited in the Reasons.  We are however, persuaded that it cannot be said to be unarguable that, reading the provisions as a whole, the Appellant is not entitled to the further benefits which she seeks.  The Tribunal itself plainly found that there were elements of difficulty and ambiguity in the inter relationships.  On that basis we think this is an appeal which must proceed.

4.	With respect to Mr Neckles, we do not believe that the particular ways that the case is put in the grounds of appeal clearly encapsulate what are likely to be the key arguments.  But without the benefit of the documents and fuller argument than is practicable without them we do not believe that we can analyse the point further.  The essential question is whether the contractual documents properly construed entitle the Appellant to sick pay following the expiry of her injury scheme entitlements.  We do not believe that the Appeal Tribunal at the full hearing will have any difficulty in identifying the particular issues arising under that general head.

5.	It is of course crucial that the Appeal Tribunal at the full hearing have available to it the full contractual documents in the form that they were before the Employment Tribunal.  It appears that there were more than one bundle of documents before the Tribunal.  It seems likely that bundle R1 is the only bundle that will now be relevant.  If so, that bundle should be lodged by with the Tribunal not less than fourteen days before the hearing.  If, contrary to our expectation, there are relevant documents in any of the other bundles the parties should seek to agree a single joint bundle for this appeal which likewise should be lodged no less than fourteen days before the hearing of the appeal.

6.	There is one further matter.  Mr Neckles has this morning produced a written application which he describes as an application for a review.  It is, as we understand it, more properly to be described as an application for leave to admit fresh evidence on the hearing of the appeal.  The evidence in question takes the form of pay slips relating to the Appellant’s pay in a period since the Tribunal hearing.  Mr Neckles says that it shows that, contrary to the Respondent’s position, she has since been receiving sick pay on precisely the basis which he says she should have received it in the past.  We are not sure that that is in fact the case: although the period in question is one of re-deployment which is Mr Neckles’s point, it is re- deployment from a fresh job which she had taken, albeit apparently briefly, in the interim, and different considerations may therefore apply.  However, we do not think we can ourselves definitively decide whether this material is relevant or admissible.  We direct that ‘the review application’, as Mr Neckles entitles it, be served on the Respondent within fourteen days and that it be heard by the Tribunal when the full appeal is listed.

7.	That Tribunal will be best placed to decide whether the new material is relevant or admissible.  Apart from the directions which we have already given, we give standard directions for Respondent’s answer and exchange of skeleton arguments.  The appeal should be listed as Category C, with an estimate of three hours.

8.	For the avoidance of doubts, no response is needed on the part of the Respondent to the application to admit fresh evidence but it should of course deal with it in its skeleton argument.