MR A MOHAMMED v LONDON BOROUGH OF CAMDEN [2001] UKEAT 0482_00_1110

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0482_00_1110Case No Appeal No. EAT/0482/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A MOHAMMEDAPPELLANTLONDON BOROUGH OF CAMDENRESPONDENT
Before
His Honour Judge J R ReidDate 11 October 2001
[1]APPEARANCES For the Appellant MR D BASU (Of Counsel) Instructed by Messrs Hodge Jones & Allen Solicitors Twyman House 31-39 Camden Road London NW1 9LR For the Respondent MS ADRIENNE MORGAN (Of Counsel) Instructed by London Borough of Camden Legal Services Department Town Hall Judd Street London WC1H 9LP JUDGE REID QC This is an appeal by the Applicant below, Mr Mohammed, against a decision of an Employment Tribunal at London North which was promulgated on 7 March 2000 following a hearing on 15 February 2000. By that decision the Tribunal unanimously held that the Applicant's complaint that the Respondent had unlawfully deducted from his wages, half his pay from 21 August 1999 to 15 February 2000, to which he was entitled under his contract of employment contrary to section 13 of the Employment Rights Act 1996 failed and accordingly the Tribunal dismissed the complaint.[2]The facts can be set out in comparatively short form. Mr Mohammed commenced his employment with the local authority on 22 March 1990. He had a couple of back injuries and he suffered from what appears to have been degeneration of the spine which was described as being a chronic back condition.[3]On 20 February 1998 he suffered an industrial accident at work when he hurt his back while lifting a monitor screen. On 23 February he was absent from work for one day. Thereafter he returned to work but in September 1998 he commenced a lengthy sickness absence.[4]From 7 November 1998 he was paid as a result of his sickness and pursuant, as the Council saw it to their sickness scheme at his full pay. That continued until 7 May 1999 when the Council, again purporting to act under their sickness scheme, started to pay him at the rate of half pay.[5]On 20 September 1999 the originating application was presented and on 7 November 1999 the Council stopped paying Mr Mohammed at all on the basis that his entitlement to pay under the sickness scheme had then expired altogether. As I have said the hearing was on 15 February, and Extended Reasons were promulgated on 7 March.[6]The basis on which Mr Mohammed claims to be entitled to further pay is that his absence from work was caused by a qualifying industrial accident, that is to say the accident when he injured himself on 20 February. So far as that is concerned there was before the Tribunal medical evidence in the form of various medical reports. Those reports were put in very late over the objection of the Council and without the Council having opportunity either of cross-examining the makers of any of the reports or of calling any medical evidence on their own account.[7]There are no specific findings about that medical evidence in the body of the Tribunal's decision although clearly they had the reports in mind because they record references to the medical certificates in paragraph 9(3) of their extended decisions. What is noticeable about those various reports is that the bulk of them are concerned with Mr Mohammed's desire to retire early on medical grounds and are supportive of that desire. For example, on 10 September 1998 Dr Nagpaul, his general practitioner, wrote a report concluding his physical disabilities and worries about work were obviously putting him under strain and "I would support his retirement on medical grounds."[8]On 29 December 1998 Mr D J Rossouw, a Consultant Orthopaedic Surgeon at the Wellhouse NHS Trust Associated University Hospital wrote a report which concludes:
"It seems as though his work is being quite badly affected by his chronic back condition in that he is unable to fulfil his work requirement as he would like to. I would support him in grounds for medical retirement if this is to occur."
[9]His chiropractor wrote to say he had a chronic condition which was worsened by his job and was likely to continue for some time in the future. In June 1999 Dr Nagpaul wrote:
"Mr Mohammed still suffers with considerable problems with his back which are now chronic and long-term in nature, and are likely to be so for the foreseeable future. He has also consequently suffered a depressive illness which is still present and for which he is on medication. At present he is physically unfit to work."
[10]In June 1999 Mr Crock, an eminent Consultant Spinal Surgeon concluded his report:
"He is totally unfit for work and could in my view be retired on medical grounds."
[11]The only point in these reports at which the question of whether his unfitness to work resulted from the injury incurred in February 1998 is raised is in Dr Nagpaul's report of 14 February 2000. This is addressed to the solicitors acting for Mr Mohammed. In it she says:
"I feel it would be reasonable to assume that his injury in February 1998 had exacerbated his previous injuries in 1996 and 1997. Mr Mohammed at present still suffers from a depression and chronic lower back pain which I feel both are a result of his industrial accident. At one time Mr Mohammed was severely depressed"
Then she goes on to deal with depression and concludes:
"I confirm that Mr Mohammed's physical injuries did warrant his absence from work as his job require a degree of lifting which he was unable to do. Mr Mohammed's physical injuries are compatible with accident at work. Prior to these incidents Mr Mohammed had worked regularly and had never had a long period of incapacity. It had a profound effect on his working life in that he has been unable to work, and also on his mental state. He has suffered a severe depression and has only recently been improving."
[12]That conclusion by the doctor perhaps might be said out of line with all the earlier medical reports. It was not so much a medical conclusion; it was a common sense conclusion based on the facts of what had happened to Mr Mohammed over a considerable period. It is not for us to say whether we would necessarily have reached the same conclusion as the Tribunal when they appear to have discounted that view but it was open to the Tribunal to follow the views expressed in the substantial number of the earlier medical reports and also to follow what they saw and heard in the course of oral evidence from Mr Mohammed. In particular he did not allege any causal link between his industrial injury on 20 February 1998 and the reason for his sickness absence from September 1998. It was therefore open to the Tribunal to take the view that they did that the facts as a whole did not warrant a finding that the absence from work was causally linked to the industrial injury he suffered on 20 February 1998.[13]We, accordingly, uphold the Tribunal's decision in relation to that part of the claim. There is however a further point which has been argued before us at considerable length and which has caused us a good deal of puzzlement and to which I now turn. That relates to the terms of the sickness benefits applicable to Mr Mohammed's employment. Under paragraph 10 of the National Agreement on Pay and Conditions of Service of the National Joint Council for Local Government Services there is a sickness scheme. The scheme provides so far as material as follows:
"10.1 The scheme is intended to supplement Statutory Sick Pay and Incapacity Benefit so as to maintain normal pay during defined periods of absence on account of sickness, disease, accident or assault. 10.2 Absence in respect of normal sickness is entirely separate from absence through industrial disease, accident or assault arising out of or in the course of employment with a local authority. Periods of absence in respect of one shall not be set off against the other for the purpose of calculating entitlements under the scheme. 10.3 Employees are entitled to receive sick pay for the following periods: During 1 st year of service 1 month's full pay and (after completing 4 months service) 2 months half pay After 5 years service 6 months full pay and 6 months half pay Authorities shall have discretion to extend the period of sick pay in exceptional cases. 10.4 The period during which sick pay shall be paid, and the rate of sick pay, in respect of any period of absence shall be calculated by deducting from the employee's entitlement on the first day the aggregate periods of paid absence during the twelve months immediately preceding the first day of absence."
Then, are a number of other provisions in clause 10 which I need not read out. 10.4 can be summarised (I think) by saying that it creates a rolling year for sick pay periods. But on top of that there is also a scheme contained in what is known as the Greater London Whitley Council Scheme which provides as follows:
"APPENDIX A ALLOWANCES TO EMPLOYEES INJURED IN THE COURSE OF THEIR EMPLOYMENT SCHEME. If an employee (full-time or part-time) becomes incapacitated for work by reason for an injury sustained or disease contracted in the actual discharge of his duty and specifically attributable to the nature of his duties (and not being wholly or mainly due to or seriously aggravated by his own serious and culpable negligence or misconduct), the following provision shall apply:- 1. An allowance under the appropriate sickness payments scheme shall be paid to him by the Council at the rate of full salary or wages (less National Insurance or Industrial Injuries Benefit receivable) for a period not exceeding twelve months from the date when the injury or disease occurred…"
That is as much of the Whitley Council scheme as was thought by the parties to be relevant to us.[14]The question is how these two schemes fit together. In our judgment the intention is to fit the Whitley scheme into the sickness scheme hence the reference in Appendix A paragraph 1 to an allowance under the appropriate sickness payment scheme. The reference in 10.2 of what was described as the Green Book "Absence in respect of normal sickness is entirely separate from absence through industrial disease, accident or assault arising out of or in the course of employment with a local authority" reinforces the view that Whitley was intended to cover the case of injury etc sustained during the actual discharge of duties whereas the paragraph 10 was intended to cover what was described in the course of argument and indeed is described in the paragraph 10.2 as normal sickness.[15]The result of this would be that a person who for example had only one year's service but was injured in the course of their duty would be a beneficiary for a period of up to a year under the Whitley scheme whereas under the sickness scheme, but for the Whitley scheme, the person would be a beneficiary of sickness pay only for a period of one month at full pay and thereafter maybe a couple of months half pay.[16]This construction does however leave a lacuna because the period during which the Whitley payment can be made is for a period not exceeding twelve months from the date when the injury or disease occurred whereas payment under the normal sickness scheme makes provision simply for payment during time off. Thus for example it would be possible under the scheme (though we were told on instructions that it has never occurred) for someone to be worse off under the Whitley scheme after say, five years complete service in circumstances such as the following. A person is injured (perhaps a security man is assaulted whilst in the course of his duty). He decides he can soldier on for a while but then discovers that he cannot and perhaps three months after the incident he goes off sick. Were his sickness to fall under the normal sickness scheme he would be entitled to twelve months pay, six months at full rate and six months at half pay from the date of going off. But under the Whitley scheme he would be entitled to twelve months full pay but only from the date of the accident. So if in the example I have given he soldiered on for three months the Whitley pay period would expire nine months after he went off sick.[17]It may be that if the occasion arose some form of ex gratia payment might be made but that does not appear to be the contractual position and it may be that it is a position which local authorities and the unions might care to consider with a view to rectifying it. But so far as the present position is concerned we are satisfied that the effect of the two schemes read together is not to provide the possibility of two years sickness pay. It does not allow for someone for example injured in the course of their duty to claim twelve months under the Whitley scheme and then move on, in respect of that same injury, to claim a further twelve months under the normal sickness scheme.[18]That is not what is provided by the somewhat obscure words in the second sentence of 10.2 of the normal sickness scheme. That sentence reads 'Periods of absence in respect of one shall not be set off against the other for the purpose of calculating entitlements under the scheme'. All that sentence is concerned with is the calculation of the rolling year in respect of which sickness payment is calculated under 10.4.[19]It follows that in our judgment the Tribunal got the matter right in a careful judgment. It might have been desirable if they had been a little more forthright about their view of the medical evidence but it seems to us they reached the conclusion that they were entitled to reach and so far as Mr Mohammed can draw any comfort from our decision at all it is only this: that on our construction of the documents, had he persuaded either the Employment Tribunal or us that his injury was in fact an injury which fell within the Whitley code and his absence was consequent upon that injury, then he would in the circumstances probably have been entitled to rather less than he actually received. Although we were told that no attempt would in any circumstances be made to claim any money from him, he might technically have been in a position where he would have ended up owing the Council rather than vice versa. In the circumstances the appeal is dismissed.