Mrs T Zinzan v Cinnabar Support and Living Ltd: 3310102/2021
JUDGMENT
[1]The claimant’s claim for unauthorised deduction of wages and breach of contract is well-founded and the respondent is ordered to pay her the gross sum of £5,017.61 (subject to tax and National Insurance deductions).REASONS
[1]This full merits hearing was listed on 22 August 2021. The respondent has therefore had nearly six months to prepare.[2]I am told that in September 2021 Regional Employment Judge Foxwell denied a postponement application by the respondent. The basis of the application was that a partner of a director was ill and the refusal was on the basis that others could give instructions and guidance on behalf of the respondent.[3]On 8 February 2022, Mr Alastair Cook, on behalf of the respondent, emailed the tribunal as follows: ‘Unfortunately our witness in the above case is not well and will not be able to attend the virtual hearing. I am attaching a sick note. I would respectfully request a postponement to the case.’[4]The sick note appears to be from a clinic in Spain. It is dated 27 January 2022 and refers to Mr Rajendra Kanani currently suffering from general anxiety disorder. It sates that he is currently unfit for work. It does not indicate that he is unfit to attend the hearing remotely and give evidence.[5]On 14 February 2022, Regional Employment Judge Foxwell refused the application to postpone. It had not been copied to the claimant and the comment was made that the respondent, being a large organisation, can provide another witness. The respondent was notified that the hearing was at 12 noon today.[6]Also, on 14 February 2022, the claimant objected to the postponement. Mr Cook emailed the tribunal as follows: “We understand the claimant has made an objection to our request to postpone. Unfortunately due to Mr Kanani’s sickness it is impossible for our witness to attend and further, he is responsible for pulling together any further defence bundle information. Surely it would be unfair and unjust for this matter to proceed at this juncture. Mr Kanani has personally nursed his wife through intensive care and ‘long covid’ and the effects have taken their toll mentally upon him.’[7]That email was placed before Regional Employment Judge Foxwell who directed that the application would be considered at the commencement of this hearing at 12 noon. Mr Cook was notified of this by email on 14 February 2022.[8]At 12 noon today the respondent was not in attendance. Accordingly, I adjourned in order to try and contact the respondent/Mr Cook. At 12.05 the clerk called the respondent on the mobile telephone number on the claim form and left a message on answerphone. At 12.06 the clerk called the landline on the claim form and was put through to a receptionist. She was told that all staff were working from home and that she would try and get a message to Mr Cook.[9]I resumed this hearing at 12.30. No contact had been made by Mr Cook or the respondent.[10]In my judgment, Mr Cook is aware of this hearing and was notified that if he wanted to continue with his application to postpone then he would have to attend today. I have concluded that he has deliberately decided not to attend. Accordingly, I have decided to proceed with this hearing in the absence of the respondent pursuant to Rule 47, Employment Tribunal’s (Constitution and Rules of Procedure) Regulations 2013.The claim
[11]On 22 January 2021 the claimant informed the respondent that she was sick and provided a doctor’s fit note for two weeks. She provided a further two fit notes from her doctor on 5 February 2021 for two weeks and on 19 February 2021 for two weeks. I find that the claimant was absent from work for six weeks and that the whole of this period was covered by a doctor’s fit note certificate.[12]The claimant’s contract of employment provides as follows:- ‘There is also a home sick pay scheme, which is paid in tandem with SSP on condition that the sick pay rules contained in ‘The Employee Handbook’ are complied with. The scheme provides for the payment of up to 6 weeks basic pay, inclusive of SSP, in any rolling 12 month period. … If the above entitlement is exhausted, you will revert to SSP only. The continuation or variation of this scheme is purely at the discretion of the home.’[13]The Employee Handbook provides as follows:- “Sickness and injury Notification of absence If you are absent from work without prior authorisation, you or someone on your behalf should notify the Duty Manager by phone at least one hour prior to your normal start time on the first day of absence…. Any unauthorised absence must be properly explained in that first contact and, if the absence continues, you must keep us fully informed. This applies to both short and long-term situations and you will be expected to contact us on a daily basis during the first week and weekly thereafter. Period of absence If your sickness is for more than 7 calendar days then you must provide the home with a doctor’s medical certificate. You must continue to provide medical certificates to cover the whole of the absence period.’[14]For the whole of her six week sickness the respondent only paid the claimant statutory sick pay amounting to £520.39. The respondent’s pleaded justification for this is that the claimant did not follow the process set out in the Employee Handbook. Reference is made to the claimant failing to contact management daily and appears to seek to rely on the reference to having a discretion as to whether to continue or vary the scheme.[15]Halfway through the period of sickness absence the claimant queried why she was not being paid her full pay. On 11 February 2021 the respondent replied stating that it had a policy that it would only pay contractual sick pay after one year’s full employment. When it was pointed out that this was not a contractual clause, the respondent asserted that it never paid full contractual sick pay during the first year of an employee’s employment and replied upon its contractual discretion asserting that it had varied the contract such that full contractual pay was not paid during the first 12 months of employment.[16]At no time prior to the end of the claimant’s sickness absence did the respondent suggest that her failure to report in daily during the first week of her sickness absence was a reason not to pay her her sick pay.[17]I find that the claimant had a contractual entitlement to six weeks sick pay based on her basic salary of £48,000 pa.[18]I find that the discretion to terminate or vary the Home Sickness Scheme was subject to implied terms that it wold only be done on reasonable notice and not during a period of sickness absence. I find that these terms are implied by virtue of the ‘Officious Bystander’ test and also in order to give business efficacy to that clause. I find that at the time of the making of the contract, had someone suggested that the respondent could withdraw contractual sick pay halfway through a period of six weeks sickness absence, both parties would have immediately and unanimously said that that could not happen as it would be unfair. An employee should have advance notice of their rights during sickness absence.[19]The claimant accepted that she did not contact the respondent daily during the first week of her absence. She explained that this was because she had been advised to rest and not aggravate her condition by such contact. The claimant did maintain contact by submitting fit notes. I find that as a matter of fact the respondent did not withhold contractual pay on this ground. Further, I find that any such breach was not fundamental and did not discharge the respondent from the contractual obligation to pay her full contractual sick pay.[20]Accordingly, I find that the respondent made unauthorised deduction of the claimant’s wages and was in breach of contract. 21. £48,000 ÷ 52 = £923.07 x 6 = £5,538 - £520.39 SSP = £5,017.61 gross.[22]Accordingly, there will be judgment for the claimant for the sum of £5,017.61 gross (such sum to be subject to tax and National Insurance). Reconsideration[23]If required, the respondent can apply for reconsideration of this judgment. If the respondent does so, the respondent should indicate why it says it is necessary in the interests of justice for the judgment to be reconsidered and should provide a witness statement setting out precisely why it is that the respondent was not in attendance today.The claim
[1]On 10 March 2022 at 15:34 Mr Cook, a director of the Respondent, sent an email to the Tribunal with an attachment headed “Appeal re Mrs Toni Zinzan v Cinnabar Support and Living Ltd”.[2]Any appeal against the judgment is to the Employment Appeal Tribunal.[3]Nevertheless, EJ Alliott has treated the email and attachment as an application for reconsideration of the judgment pursuant to rule 71 ET’s (constitution & Rules of Procedure) Regulations 2013.[4]At paragraph 23 of the judgment EJ Alliott indicated that any application for reconsideration should be accompanied with a witness statement setting out precisely why it is that the respondent was not in attendance on 15 February 2022.[5]The case file indicates that on 16 February 2022 at 11:48 Mr Cook sent an email stating: “We were unable to attend the hearing yesterday due to communication issues”.[6]In the 10 March 2022 document Mr Cook states: “Mr Cook was unable to attend the virtual hearing as his property is rural and there were issues with both mobile phone connections and broadband lines.”[7]EJ Alliott does not accept that Mr Cook has provided a valid reason for his failure to attend on 15 February 2022. Mr Cook was notified by email on 14 February 2022 that his application to postpone would be considered at the commencement of the 11.6R Judgment – Reconsideration refused – respondent - rule 72 Case No: 3310102/21 hearing. He has not stated that he did not receive this email. In any event, Mr Cook knew the hearing was scheduled to go ahead and that no postponement had been granted. Even if it is true that his property location means he has “issues with both mobile phone connections and broadband lines”, he made no attempt to contact the Tribunal in advance to explain any such problems or after his mobile number and office number had been called. Everyone knows where to get a signal at their home if there are “issues” with getting a signal. Mr Cook does not state he does not have a land line. He probably receives emails on his home computer/laptop and on his mobile.[8]Mr Cook has not provided adequate evidence to demonstrate that he did not deliberately decide not to attend. The failure to attend to re-apply for a postponement and represent the respondent is the respondent’s fault.[9]In any event, EJ Alliott took into account the statement of Mr Kurrain and the matters set out in the response. The Respondent and Mr Cook are seeking to advance various facts and matters to explain and justify varying the claimant’s contract of employment unilaterally to remove her contractual right to six weeks’ contractual sick pay.[10]It is insinuated that her sickness was not genuine. However, all six weeks absence were covered by a medical “Fit Note”.[11]Various allegations of negligence and bullying have been made against the claimant along with an assertion that the respondent has financial difficulties in order to justify the variation of the claimant’s contract of employment.[12]Even if these allegations were made out, whilst they might explain the respondent’s actions, they would not, in EJ Alliott’s judgment, have entitled the respondent to withdraw the claimant’s right to contractual sick pay half way through her period of sickness in the absence of reasonable notice. This is due to the implied terms found by EJ Alliott.[13]Consequently, EJ Alliott does not consider that it is in the interests of justice to reconsider the judgment or to allow a further hearing for the respondent to advance its arguments. EJ Alliott considers that there is no reasonable prospect of the original decision being varied or revoked. The application for reconsideration is refused.