Michael Theophilus v Balfour Beatty Group Employment Ltd: 1600135/2019

EMPLOYMENT TRIBUNALS

Case No 1600135/2019

Between

Michael TheophilusClaimant

Balfour Beatty Group Employment LtdRespondent

Before

Employment Judge Howden-Evans

In person for claimant

Sebastian Purnell (instructed by Counsel) for respondent

Date 13 May 2019

JUDGMENT

[1]Having considered the bundle of documents and the witness statement of Mr Hancock and having heard submissions from both Mr Purnell and Mr Theophilus, the employment judge’s decision is that Mr Theophilus’s claim of unlawful deductions from wages has no reasonable prospect of success and is struck out (per Rule 37 Employment Tribunal Rules of Procedure 2013). The employment judge explained her reasons for this decision at the hearing; written reasons will not be provided unless requested within 14 days of this judgment. JUDGMENT

[2]JUDGMENT was sent to the parties on 13th May 2019, following the employment judge’ decision and oral reasons at the hearing. Mr Theophilus has requested written reasons. The

REASONS

[1]Mr Theophilus has been employed by Balfour Beatty since 28th November 1988 and continues to be employed by the Respondent as a Project Manager.

[2]Between 31st July 2017 and 11th May 2018, Mr Theophilus was absent from work due to ill health (“the first period of long-term sickness absence”). Mr Theophilus returned to work on 11th May 2018. On 8th October 2018, Mr Theophilus commenced a second period of longterm sickness absence.

[3]Having raised a grievance and complied with the ACAS early conciliation procedures, Mr Theophilus presented an unlawful deductions from wages claim on 29th January 2019, seeking the difference between statutory sick pay and contractual sick pay. The - 1 - Respondent resisted the claim and asserts the Claimant has been paid what he was contractually entitled to during his periods of sickness absence.

[4]This preliminary hearing was listed for an employment judge to consider whether the Claimant’s claim ought to be struck out, ie whether the claim had no reasonable prospect of success.

[5]It is accepted that during the Claimant’s first period of long-term sickness absence, the Claimant was paid company sick pay for 26 weeks. When the Claimant commenced a second period of long-term sickness absence, on 8th October 2018, the Respondent considered the rolling 12 month period (ie 8th October 2017 to 8th October 2018) and as the Claimant had 147 days of absence, determined the Claimant had exhausted his 26 week company sick pay entitlement for that rolling 12 month period. The Claimant was paid statutory sick pay rather than company sick pay for the second period of long-term sick leave.

[6]The Claimant asserts that the rolling 12 month period should start on the first day he was sick in the first period of absence, ie 31st July 2017 and should extend to 31st July 2018, so that by 1st August 2018 the Claimant was entitled to full contractual sick pay again.

[7]In the bundle of documents, I considered the Claimant’s employment contract dated 1st January 2015, which provides: “9. Payment of salary during incapacity arising from sickness or accident covered by medical certificate or self-certification is as follows: Service Entitlement (weeks salary, including any SSP) 5 years and above 26 weeks”

[8]I also considered the Respondent’s Sickness Absence Policy which provides: “17.1 Subject to compliance with the foregoing and in line with the relevant service entitlement, payment during absence, due to sickness, in a rolling 12 month period is made in line with an individual’s contract of employment. 17.2 Where not stated in an individual’s contract of employment (which always takes precedence) the entitlement to payment of company sick pay is on the following basis: - ……• Over 5 years’ service – 26 weeks company sick pay” - 2 -

[9]The Sickness Absence Policy also provides “The Sickness Absence Policy is for guidance only. It is intended only as a statement of the Company’s policy and does not form any part of any employee’s contract of employment or otherwise have contractual effect. The Company reserves the right to make additions or alterations to this policy from time to time….The Company also reserves the right not to apply this policy or apply a modified process at its discretion where it deems it appropriate to do so.”

[10]By letter of 19th November 2018, the Claimant wrote to the Respondent setting out his understanding of his right to Company sick pay: “Under the terms of my contract, I am entitled to receive company sick pay (inclusive of SSP) for a period of 26 weeks. I have attempted to return to work for a period of approximately 5 months since my last period of certified sick leave and this should have reactivated the company sick pay entitlement as I was informed by a member of the HR team”.

[11]By email of 15th January 2019, the Respondent’s Callum Gardner-Kerr, Payroll Team Manager, advised the Claimant: “Thank you for your call yesterday to discuss the progress of your outstanding queries. I would like to confirm the points discussed…• I confirmed to you how the rolling 12 month period is administered to calculate sickness absence pay within Balfour Beatty. By way of reminder, it is calculated from the first day you are absent and goes back a full 12 months from that date. The system looks at how many days sickness you have had in that time. The total number of days is then removed from your sickness entitlement when your new sickness is calculated. This is the standard process across Balfour Beatty.”

[12]Mr Theophilus asserts it is necessary to allow his claim to proceed to a full hearing as he alleges he had a telephone conversation with a person in the HR team who advised him the rolling 12 month period should start on the first day he was sick in the first period of absence. The Claimant is not able to identify the member of HR that had advised him the Sickness Absence Policy is applied in the manner he has suggested. The Claimant does not have any documents providing this advice, rather he says he had a conversation with someone in HR and this was the Claimant’s understanding following that conversation.

[13]The Respondent’s Adrian Hancock, Employee Relations Business Partner (who advises managers upon the operation of the sickness absence policy) had prepared a witness statement and attended the preliminary hearing. His evidence was during his seven years at Balfour Beatty, the sickness absence policy had never been operated in the manner the Claimant was asserting. - 3 -

[14]The Claimant asserted he was aware of 2 employees who had received Company sick pay for longer than 6 months (in a rolling 12 month period) but accepted this was many years ago, more than 7 years previously.

[15]Rule 37 of the Employment Tribunal Rules of Procedure 2013, provides “At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds – (a) that it….has no reasonable prospect of success;”

[16]The power to strike out a claim should only be exercised in rare circumstances and cases should not be struck out when the central facts are in dispute. At a preliminary hearing, the employment judge is not in a position to conduct a mini-trial. If the issue to be decided depends upon conflicting evidence, it should be allowed to proceed to a full hearing on the merits.

[17]However, there is an exception to this principle and that is where there is no real substance to the factual assertions being made, particularly when they are contradicted by the contemporary documents.

[18]Mr Purnell has referred me to the Court of Appeal’s decision in Ahir v British Airways plc

[2017] EWCA Civ 1392

and in particular Lord Justice Underhill’s comments that tribunals should not be deterred from striking out a claim, even where a dispute of fact is involved, 'if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching a conclusion in circumstances where the full evidence has not been heard and explored'.

[19]When I take the claimant’s case at its highest, he is asserting that the Tribunal would prefer his interpretation of his contract and how the sickness absence policy should be applied, based on his understanding following a conversation with an unknown HR officer. The alternative is the Tribunal preferring the evidence of Mr Hancock (who has responsibility for advising managers upon the operation of the sickness absence policy) and is able to give evidence as to how the policy has actually been applied in the last seven years across the business. There is also the email of 15th January 2019, from Mr Gardner-Kerr, Payroll Team Manager, which further supports Mr Hancock’s evidence.

[20]Having considered the documents and the claimant’s case at its highest, I am satisfied that the Claimant has no reasonable prospect of succeeding with this claim as there is indeed no reasonable prospect of the Claimant establishing the facts he needs to prove to establish liability. - 4 -

[21]The employment judge’s decision is that Mr Theophilus’s claim of unlawful deductions from wages has no reasonable prospect of success and is struck out (per Rule 37 Employment Tribunal Rules of Procedure 2013).