Miss S Uwera v Grace Live In Carers Ltd: 2401503/2019

EMPLOYMENT TRIBUNALS

Case No 2401503/2019

Between

Miss S UweraClaimant

Grace Live In Carers LtdRespondent

Before

Employment Judge Holmes

In person for claimant

Date 28 June 2019

JUDGMENT

[1]The name of the respondent be amended to Grace Live Carers Limited.

[2]The Tribunal has no jurisdiction to hear the claimant’s claim, and it is dismissed.

REASONS

[1]The name of the respondent in these proceedings has been amended from Grace 247 to a limited company, Grace Live In Carers Limited.

[2]The Tribunal has this morning convened to hear what has been presented as an unlawful deduction from wages claim by the claimant, who lodged a claim form on 21 January 2019. In that claim form she very succinctly in the box at page 6, in terms of the details of the claim, ticked the box and said, “I didn’t get enough sick pay that you’re supposed to get”. The claimant went on to explain how she broke her arm and she was supposed to get sick pay off her employer but they did not give her enough. She did not get the money she was supposed to get. That claim was received by the Tribunal and was treated, understandably, as a claim for unlawful deduction from wages. It was therefore processed on that basis.

[3]The respondent, as it then was (Grace 24 Care was the name of the respondent at the time but that has now been amended) sent in a response in which in essence they disputed that the claimant was entitled to anything else. They had been in touch with ACAS and as far as they were concerned there was a discrepancy and there was no more money due to the claimant. Consequently , that was received by the Tribunal. The Tribunal then made some orders about this hearing, which was extended to three hours, and also the parties were ordered to prepare witness statements and documents, which in fact they have done.

[4]The parties have attended today. Miss Uwera has attended assisted by her daughter , and Ms Mhizha and Chidemo have appeared on behalf of the respondent.

[5]At the outset of the hearing the Employment Judge explored with the respondent what the nature of the dispute was, and was the respondent disputing the entitlement of the claimant to the sick pay sums that she is claiming. It became apparent from what the respondent told the Tribunal, that that was indeed the case. Indeed , as far as the circumstances are concerned , the respondent paid some statutory sick pay but then considered that the claimant had no further entitlement. The respondent would argue that she was not sick, she could have come to work, she was away in Holland, she did not produce relevant evidence of her sickness, and things of that nature, but all of that clearly would have advanced as an argument that the claimant had no further entitlement to any further sick pay.

[6]The claimant, in her address to the Tribunal, explained the circumstances as she saw them and how she first went to the Jobcentre and took her contract of employment with her. She was advised that the respondent had to pay her for 28 weeks as sick pay. There was then some toing and froing, to put it that way, between the claimant, the Jobcentre, HMRC and the respondent as some money was paid, but in terms of communication between HMRC or the Jobcentre and the respondent there were some issues . Ultimately the claimant was not paid any more sick pay. She went to the CAB for advice. She wrote a letter of grievance on their advice. That was not responded to. She went back to the CAB. She was told to contact ACAS. She went through the early conciliation process as she is required to do, and consequently with the advice and encouragement of the CAB, and probably ACAS, she presented this claim to the Tribunal, which is , of course , totally understandable and something she believed was the appropriate course to take.

[7]The nature of the dispute, however, between these parties is as to entitlement. That raises a question of jurisdiction. The Employment Tribunal is a body set up by statute, it is governed by legislation, and its powers, therefore, are derived from Acts of Parliament. In relation to unlawful deduction from wages claims they are brought under the Employment Rights Act 1996, and in section 27 of that Act , in terms of what “wages” means, there is a provision at section 27(1)(b) that wages include statutory sick pay. On that basis it may be thought, and reasonably thought, that that would mean that a claim of this nature could be presented by the claimant , and could be adjudicated upon by this Tribunald that indeed was the understanding for quite some time. However, in 2004 there was a case before the Employment Appeal Tribunal , Taylor Gordon & Co v Timmons

[2004] IRLR 180

where this very point was raised, and there a Tribunal had made an award of statutory sick pay but on appeal the QC for the employers took the Judge through the legislation governing statutory sick pay.

[8]What the respondent’s QC pointed out the Judge was that there was, in terms of entitlement to statutory sick pay, a specific regime whereby any disputes as to entitlement to receive statutory sick pay , or the amounts of statutory sick pay that would be payable , was to be determined by HMRC or its predecessor in those days. Consequently he argued, and the Employment Appeal Tribunal accepted, that where there is a specific statutory mechanism for determining entitlement to SSP then the Employment Tribunal’s jurisdiction is in fact ousted, and there can only be one route by which such disputes are to be determined. That was the submission made and the Employment Appeal Tribunal, in the person of the Judge, Mr Luba QC who made the decision, held that that was right. Consequently since 2004 it has been the case that the law is that where the issue is “entitlement” to statutory sick pay then this Tribunal has no jurisdiction. It retains jurisdiction in cases, however, where there is an admitted entitlement, and there has merely been a failure to pay. That is a different situation , and is probably why statutory sick pay remains in the list of wages in section 27 of the Employment Rights Act. But Taylor Gordon & Co v Timmons makes it quite clear that the Tribunal in these circumstances has no jurisdiction, as indeed has since been approved as well in two further cases: one is Sarti (Sauchiehall Street) Limited v Polito [

UKEATS/0040/07

(a Scottish case). That was an appeal heard by Lady Smith in relation to similar provisions, and she too came to a similar conclusion and indeed cited the Timmons case as being authority for this proposition. Another case, Hair Division v MacMillan [

UKEATS/0033/12

a UKEAT case (and again a Scottish case) came to a similar

conclusion.

[9]The effect of these cases is that statutory sick pay, and indeed statutory maternity pay, statutory paternity pay, statutory adoption pay and statutory shared parental pay are all matters which, if there is any dispute about entitlement, the Tribunal has no jurisdiction and the relevant statutory body, in this case HMRC, is the only route that a claimant can take.

[10]Consequently , for those reasons, which it is appreciated are very narrow, technical and legal ones , of which the parties were doubtless unaware, as indeed probably were ACAS and the CAB , which is why I do not criticise them, and there may be many lawyers who are not au fait with those provisions, but the effect of them is that the Tribunal has no jurisdiction to entertain the claimant’s complaint and it must therefore be dismissed.