Appeal No. UKEAT/0167/12/JOJ

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 7 February 2013

Before
THE HONOURABLE MR JUSTICE MITTING
MR C EDWARDS
MR T STANWORTH

MS C O’BRIEN	APPELLANT

(1) LONDON BOROUGH OF HARINGEY
(2) THE GOVERNING BODY OF COLERAINE PARK PRIMARY SCHOOL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR R O’DAIR
(of Counsel)
Instructed by:
Guy Clapham & Co
51-55 Weymouth Street
London
W1G 8NH
	
For the Respondents	MS M MAITLAND-JONES
(of Counsel)
Instructed by:
London Borough of Haringey
Corporate Legal Services
9th Floor, Alexandra House
10 Station Road
Wood Green
London
N22 7TR	

SUMMARY
CONTRACT OF EMPLOYMENT
Sick pay and holiday pay
Implied term/variation/construction of term

Whether trip to school in Gambia undertaken with approval of head teacher for purposes connected with the school was undertaken in the course of the teacher’s employment, as defined in a collective agreement incorporated into her contract of employment, for the purpose of determining entitlement to full pay during absence caused by sickness contracted at the Gambian school.

THE HONOURABLE MR JUSTICE MITTING

1.	The Claimant was a Year 3 teacher at the Coleraine Park Primary School.  She began work there on 1 September 2009.  Her personal conditions of service incorporated the “Burgundy Book”, which contained provision for what would happen to a teacher in the event that they sustained injury or became ill during the course of their employment.

2.	The facts of this case are very unusual.  In January 2010 the school wanted to become part of an initiative being promoted by the British Council.  It involved creating links between schools around the world.  If an initiative proposed by a school was accredited by the British Council, three years’ worth of funding for linking activities would be provided.  The process required a bid to be compiled.  The person in charge of compiling the bid at the school was a Mr Hsiao, another Year 3 teacher.  One of the things that the school wished to do to advance its application was to show some existing link between the school and an overseas school.  That would involve such activities as the exchange of materials between the schools.

3.	Quite independently of this, the Claimant took a holiday in Gambia at Christmas time in 2009.  She visited a local school there.  On her return in January 2010, she found out, apparently for the first time, about the school’s intention to bid for British Council accreditation and suggested to Mr Hsiao that the school at which both taught should be linked with the school that she had visited in Gambia.  Mr Hsiao said yes, but the Claimant was to check with the acting head, Mr Tedscoe.

4.	Getting that conditional go‑ahead, the Claimant emailed the headteacher of the school in Gambia, a Mr Janko, and asked if he was interested.  If he was, she would get permission to come in February and exchange materials with him.  Mr Janko sent a positive reply.  The Claimant then prepared a scheme of work and emailed it to him.  It suggested a list of activities that children in her class and in the school in Gambia would do during that half-term, leading to an exchange of the materials produced by each set of children.  The plan indicated that she would exchange the materials on a visit that she intended to make to Gambia in the February half-term.

5.	Thus far the evidence was uncontroversial and was accepted by the Tribunal.  There was then a difference in recollection between the Claimant and the acting headteacher Mr Tedscoe.  The Claimant gave oral evidence; Mr Tedscoe’s evidence was produced by a written statement, but he did not give oral evidence.  The Claimant said that she took her scheme to Mr Tedscoe and explained that she would go to Gambia to exchange the material.  Mr Tedscoe said that the school could not pay for the trip.  She said she didn’t mind paying for it herself.  She said that he then gave her “permission” to go.  She then discovered that it was necessary for her to fly out to Gambia on the last day of the half-term, Friday, 12 February.  She told Mr Tedscoe that; he agreed that she could take that day off with pay.  Mr Tedscoe’s evidence in his statement was that he Claimant asked him for special leave for 12 February as she was travelling to Gambia on a personal trip.  He was happy to grant that permission, as she wished to visit the school she had been to on a previous holiday and with which she had been in communication.

6.	The Employment Tribunal resolved this difference of evidence in the following way.  It found it more likely than not that the Claimant put it to Mr Tedscoe that the work plan should be approved and that she might take the opportunity, while she was on holiday in Gambia, to exchange the material generated in the course of the work plan.  It also found that it was “most unlikely” that the Claimant would have gone to Mr Tedscoe simply to ask for paid leave on the day before the half‑term holiday on the grounds that she needed to take a flight that day to enjoy a holiday in Gambia and even less likely that he would have approved such a request.  Accordingly, the Tribunal, on that issue, accepted the Claimant’s evidence.  That has a consequence that we shall explain.

7.	Going back to the chronology, the Claimant made the trip; she spent two sessions at the school, one of two hours and one of three hours.  She met and was in close contact with many children.  She was virtually mobbed on arrival.  She spent time in class sitting close to children and reading to them in groups.  She took the material that her class had produced, together with some books donated from the school library, and although the Tribunal does not so find it seems implicit that she must have brought back material form the school as well.

8.	Unhappily, she then fell ill.  By the time that the case reached the Tribunal, the cause of her illness was common ground: it was that she had contracted, at least on balance of probabilities, cytomegalovirus during her trip in February to Gambia and had contracted it as a result of contact with the children there.  She claimed that under the terms of her contract of employment she was entitled to be paid during the period of her illness, initially suffering and recovering from the virus and then from an illness consequential upon it, which, it was accepted, was attributable to the virus.  She relied on clause 10.1 of a collective agreement made between the teaching unions and the teaching employers and known as the Burgundy Book.  We are told and accept that her own terms of employment expressly included this clause.  It reads:

“10. Contact with infectious diseases
10.1 When the approved medical practitioner attests that there is evidence to show a reasonable probability that an absence was due to an infectious or contagious illness contracted directly in the course of the teacher’s employment full pay shall be allowed for such period of absence as may be authorised by the approved medical practitioner as being due to the illness […].”

9.	Clause 10.1 went on to provide that such absence was not to be reckoned against the teacher’s entitlement to sick leave.

10.	The issue that the Tribunal had to resolve was whether or not in the circumstances that we have set out she sustained the illness in the course of her employment.  This was not an easy question to resolve, and in the course of arguments addressed to us today, for which we are grateful, we have attempted to tease out the principles by reference to which it should be resolved.

11.	The approach of the Tribunal was to pose the basic question that it had to answer in the following uncontroversial way (paragraph 6.1):

“[…] the crucial issue is whether the visit by Ms O’Brien to the school in the Gambia, was within the course of her employment.”

12.	It went on to break that question down into two (paragraph 6.3):

“The first was what was agreed between the school and the claimant about any task that she was to perform whilst she was on holiday in the Gambia, and the second is what she actually did.”

13.	The Tribunal went on to make the findings preferring her evidence to that of Mr Tedscoe about what she and he agreed at their meeting before she went.  In analysing what had occurred, the Tribunal expressed itself as follows:

“6.9 This is not a case where the school instructed, or even asked Ms O’Brien to undertake a particular task.  In the Tribunal’s findings, she happened to be going on holiday to the Gambia in any event and volunteered, as it was on her way, as it were, to undertake the exchange of materials.
6.10 It is the Tribunal’s finding that both parties saw the arrangement as a teacher going on holiday taking the opportunity to deliver and collect material from the school in the Gambia as she would be in the country anyway.  It was certainly not an official visit.”

14.	The Tribunal did, however, find that the Claimant’s attendance at the school was “connected with her employment”.  It then rephrased the basic question that it had to ask as follows:

“6.14 The question is whether the visit to the Gambian school and all that went on there was directly in the course of the claimant’s employment.  In the tribunal finding, it was not.
6.15 It was not authorised on the basis that Ms O’Brien was making a visit on behalf of the school.  Nor indeed was it executed on the basis set out in the work plan.  She went beyond merely the exchange of material.  […]
6.16. […] This was not part of the claimant’s normal duties.  It was her initiative, it was not an official visit, it was one made in a private capacity, it was done during her holiday, and it was not her remit to engage in activities at the school in the Gambia.  Whilst it was connected with her employment, the tribunal found that it was not directly in the course of it.”

15.	Consequently, it rejected her claim.

16.	Mr O’Dair, for the Claimant, submits that the Tribunal erred in law in the approach that it took to the basic question: was the illness contracted in the course of her employment?  He submits that the appropriate test is that which is applied in a different context and for a different purpose when determining, for the purpose of vicarious liability, whether an employee is acting in the course of his employment with his employer.  He suggests that a test based upon the observations of Nicholls LJ in Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48 at paragraph 23 should be applied:

“Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm’s business or the employee’s employment.”

17.	He also cited with approval Professor Atiyah’s dictum that:

“The master ought to be liable for all those torts which can fairly be regarded as reasonably incidental risks to the type of business he carried on.”

18.	Adapted to the present context, Mr O’Dair suggested the following formulation: “Is the risk fairly to be regarded as reasonably incidental to the running of the school?”

19.	We do not find this approach to be determinative or even particularly helpful.  Vicarious liability rules are established fundamentally as a result of a policy decision made by the law about the transference of liability for risks created by wrongful acts by those acting as the employees or agents of another person.  What we are here concerned with is a different topic.  It is to determine what the two parties to the contract agreed should happen in the event that the employee suffered from illness.  Considerations of what liability would be imposed by the policy of the law upon an employer have no bearing upon that question.  Our task is the familiar one in construing a contract: it is to determine what the parties actually agreed.

20.	In the case of the terms contained in the Burgundy Book, the parties have given us a strong clue.  In paragraph 9.1, dealing with absences arising from accidents, injury or assault at work, the agreement provides:

“In the case of absence due to accident, injury or assault attested by an approved medical practitioner to have arisen out of and in the course of the teacher’s employment, including attendance for instruction at physical training or other classes organised or approved by the employer or participation in any extra curricular or voluntary activity connected with the school, full pay shall in all cases be allowed […].”

21.	There is, however, a difference in the treatment of that pay under clause 9.1; that pay is to be treated as sick pay for the purposes of other provisions of the agreement that we have not seen.  Quite why there is a difference between the treatment for sick‑pay purposes of pay under clause 9 and pay under clause 10.1 we do not know; plainly, there must have been some good reason for the distinction.

22.	What the parties have done in paragraph 9.1 is to state what in their joint view was to be regarded as being “in the course of the teacher’s employment”.  It was to include attendance for instruction at physical training, attendance at other classes organised or approved by the school or participation in any extra‑curricular or voluntary activity connected with the school.  It is true that the parties did not spell out what they regarded as included within the phrase “in the course of the teacher’s employment” in clause 10.1, but we can see no reason why they should have adopted a different meaning for “in the course of the teacher’s employment” in clause 10.1 from that expressly adopted in clause 9.1.  We are therefore satisfied that as a matter of construction, and therefore of law, the parties to this contract agreed that absence due to an infectious or contagious illness contracted during participation in any extra‑curricular or voluntary activity connected with the school was to be regarded as being in the course of the teacher’s employment.

23.	The Tribunal laid emphasis on the word “directly” in paragraph 10.  It is not clear to us whether “directly” qualifies “contracted” or “in the course of the teacher’s employment”, but on no view can it alter the meaning of the phrase “in the course of the teacher’s employment”.  If clause 10.1 had provided that an absence due to infectious or contagious illness contracted directly or indirectly in the course of the teacher’s employment, it still would not have told us what the meaning of the phrase “in the course of the teacher’s employment” was.  For that, we have only two sources of information: first, the sense in which that phrase is generally used; and secondly, the particular emphasis on facets of it that the parties have chosen to include in the definition in paragraph 9.1.

24.	Applying that definition to the facts found by the Tribunal, we are on balance driven to the conclusion that the illness contracted by the Claimant was contracted in the course of her employment.  The critical findings of fact agreed or made by the Tribunal that lead to that conclusion are as follows.  The school wished to take part in the initiative proposed by the British Council.  To that end it required a link to be established with an overseas school and the exchange of materials with that school.  Although the proposal that the link should be established with the school in Gambia came from the Claimant, it was approved and therefore determined by the acting headteacher that it should be that school with which the link was to be made.  The Claimant required the permission of the acting headteacher for two purposes: first, to take the day of school term off to permit her to go to Gambia; and second, to exchange materials, one side of which originated from her school, with the school in Gambia.  As the Tribunal expressly found, these activities were “connected with her employment”.  There is no material distinction between that phrase and “connected with the school” in clause 9.1 of the Burgundy Book.  Although what she was doing did not fit precisely into the category “any extra curricular or voluntary activity connected with the school”, it was so closely analogous to it that it if the parties had thought about it, they must be taken to have agreed that it should be included within it.

25.	The Tribunal’s findings that the visit to the Gambian school and all that went on there were not “part of the claimant’s normal duties” and that it was “her initiative, it was not an official visit” and that it was “not her remit to engage in activities at the school in the Gambia” are not in point.  What had happened was that the acting headteacher had agreed that she should go to the school with the permission of the school to exchange materials.  It must have been reasonably contemplated that for that purpose she would not simply act as a postwoman but in the interests of furthering the links that it was hoped would be established between the schools and for her school’s purposes that she would go in the ordinary course of her visit beyond those simple tasks.

26.	In the end, what she was doing was an activity undertaken with the permission and approval of the school and connected with it.  Accordingly, in the extended definition given to the phrase “in the course of the teacher’s employment” in clauses 9 and 10 of the Burgundy Book, because she contracted an infectious illness during the course of that activity, she is entitled to be paid under the provisions of clause 10.  We add by way of clarification that no issue arises as to the need for attestation by a doctor approved by the school; it is accepted by the Respondents that the finding of the Tribunal that her illness was probably contracted during her visit in February to the school in Gambia suffices.

27.	For those reasons, this appeal is allowed.