Department of Work and Pensions v. Sutcliff [2007] UKEAT 0319

EAT
Department of Work and Pensions v. Sutcliff
[2007] UKEAT 0319 · 2007-10-10
[44]If you are too ill to recommence work at the end of your Maternity leave, the normal sick pay rules will apply. If your absence results from non-maternity related causes, then your absence will be considered under the attendance management procedures." The statutory right to maternity leave Section 71 ERA is headed:
"Ordinary Maternity Leave"
. By section 71(1):
"An employee may, provided that she satisfies any conditions which may be prescribed, be absent from work at any time during an ordinary maternity leave period."
Subsection 2 provides for 26 weeks ordinary maternity leave, according to regulations made by the Secretary of State. The relevant regulations are The Maternity and Parental Leave, etc Regulations 1999 (SI99/3312) (the Regulations). Section 71(4) provides that an employee exercising her right under section 71(1) may be entitled to the benefit of the terms and conditions of employment which would have applied if she had not been absent and entitles her to return from maternity leave to a job of a prescribed kind. By section 71(5)(b), terms and conditions of employment does not include terms and conditions about remuneration. Regulation 9(3) of the regulations provides:
"For the purposes of section 71 of the 1996 Act (ERA), only sums payable to an employee by way of wages or salary are to be treated as remuneration."
Unlawful deductions from wages By section 13 ERA an employer shall not make a deduction from wages of a worker employed by him subject to inapplicable exclusions on the facts of this case. By section 27(1) the expression "wages" means any sums payable to the worker in connection with his employment, including: (a) Any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise. (b) Statutory sick pays. (c) Statutory maternity pay, [and other types of payment there set out]. Section 23(1) provides that a worker may present a complaint to an Employment Tribunal:
"(a) that his employer has made a deduction from his wages in contravention of section 13 …"
The Chairman's Decision At paragraph 4 of his reasons, the Chairman summarised the Claimant's case in this way: she had been signed off sick by her General Practitioner throughout the period of her maternity leave. The contract document provided for:
"Sick absence on full pay less any … Maternity Allowance received."
She did receive maternity allowance which could only be paid to someone on maternity leave, thus she was contractually entitled to have her full pay made up by DWP during her maternity leave whilst she was certified sick. In accepting that contention the Chairman rejected the case for DWP, which was: (1) Insofar as she took her entitlement to maternity leave under the statutory provisions of section 71 ERA she was not entitled to remuneration, which includes sick pay. The Chairman held that remuneration in section 71(5)(b) and regulation 9(3) did not include sick pay, and (2) The terms of the MLP were incorporated into the contract of employment and they excluded the payment of remuneration (paragraph 2) which included sick pay. The Chairman held that the MLP was not incorporated into the contract because the Claimant had no access to the DWP intranet site after receipt of the contract document, but even if it did apply, the policy did not state that sick pay was not payable. On the contrary, paragraph 43 of the Policy, properly construed, provides for the payment of sick pay in the event of sickness during maternity leave. The Appeal The Claimant's position in this appeal is somewhat delphic. She does not appear today, is not represented and has not lodged a formal Respondent's Answer. Instead her solicitor, Mr Gaskell, who represented the Claimant below, wrote this letter to the EAT dated 6 July 2007, following my order of 22 June granting permission for the appeal to proceed to a full hearing:
"Dear Madam, I write on behalf of Ms Sutcliffe as the solicitor who represented her at the original tribunal. I have spoken to Miss Sutcliffe on the subject of resisting the Appeal from the Judgment of His Honour Judge Thomas from the Manchester Employment Tribunal. Whilst I do not have a copy of the actual Respondent's answer form that was supplied to Miss Sutcliffe, I can confirm that we do not resist the application for the Appeal. Our case is by way of case stated. We have nothing further to add and we will not be attending the ppeal Hearing. "
We understand the Appeal will go ahead in our absence. Our view is that the DWP are appealing against the decision of the Judge; that the Judge erred in Law, that is a decision to be made by the Tribunal itself. We would make no further representations at this stage. We will abide by the decision of the Appeal Tribunal and await the Outcome in due course." In my view, Miss Davies adopts a perfectly proper approach to the Claimant's position in this appeal. It is that she does not appear, and makes no submissions in support of the Chairman's reasoning; she simply relies upon it. That letter, therefore, should not be treated as in any way consenting to the appeal being allowed. Even had that been the proper construction, it is not the practice of the EAT to allow an appeal, even by consent, against the reasoned Judgment of an Employment Tribunal without itself being satisfied that the Tribunal has fallen into error. Accordingly I have considered the grounds of appeal advanced today by Miss Davies on behalf of DWP on their merits. In summary, DWP take three points: (1) The expression "remuneration" in section 71(5)(b) ERA, read with regulation 9(3), includes sick pay. (2) The Chairman was wrong in Law to find that the MLP was not incorporated into the contract of employment. (3) On a proper construction of the MLP the Claimant was not entitled to sick pay while she was on maternity leave. In my judgment DWP is correct on each count. Consequently the Chairman's decision cannot stand. The appeal is allowed and the finding of unlawful deductions is set aside. The claim is dismissed. My reasoning for reaching that conclusion is as follows: (1) Both parties and the Chairman (see Reasons, paragraphs 2, 4 and 5) have proceeded on the basis that the Claimant commenced a period of maternity leave on 1 August 2006 and that leave continued throughout the relevant period. (2) If the Chairman was correct in finding that the MLP was not incorporated into the contract, then the contract document of 17 July is silent on the subject (Reasons, paragraph 3.4). Accordingly the Claimant would then be dependent on her statutory rights under section 71 ERA. (3) Applying section 71 I agree with the DWP that remuneration under section 71(5)(b), read with regulation 9(3), includes sick pay, and thus entitlement to sick pay during maternity leave is excluded by operation of section 71(5)(b). Put another way, it would be a strange result if contractual sick pay formed part of a worker's wages within the meaning of section 27(1) for the purposes of a complaint under section 23(1), as the Chairman correctly found for the purposes of upholding the complaint, but not remuneration, that is sums payable by way of wages or salary, within the meaning of regulation 9(3). (4) I also agree that in fact the MLP was incorporated into the contract of employment by virtue of the notification in the contract document to the employee of the full details of her Conditions of Service on the intranet site. I do not accept the Chairman's reasoning that because the Claimant did not have access to the intranet site during her absence that the policy was thereby not incorporated. DWP had done all that was reasonably sufficient to give the Claimant notice of the policy. See Hood v Anchor Line (Henderson Bros) Ltd [1918] AC 837. The fact that the Claimant did not read the policy or was incapable of personally doing so is immaterial. See Thompson v LMS Railway Company [1930] 1KB 41. (5) The terms of the MLP are tolerably clear. Paragraph 2 provides that an employee without at least 26 weeks service (this Claimant) is entitled to receive all contractual entitlements during maternity leave, apart from remuneration. As I have earlier indicated, remuneration includes sick pay by parity of reasoning. Paragraph 22 makes clear that the period before maternity leave will be treated as sick leave; it does not allow for sick pay during maternity leave. The position under paragraph 43, on which the Chairman relied, requires the employee to give notice of early termination of maternity leave if she wishes to claim sick pay for sickness during maternity leave; the employee will then be subject to the normal attendance management process. There is no evidence that the Claimant served notice to end her maternity leave; on the contrary, it was common ground, as I have earlier observed, that her maternity leave ran its normal course. (6) That leaves the final point which impressed the Chairman. The contract document, in the section headed "Sick Leave", provided that the employee would be allowed sick absence on full pay less any Social Security and National Insurance Benefits such as, among others, Maternity Allowance. Before the Chairman, Counsel then appearing suggested that was a mistake. Before me, Miss Davies has raised the possibility that by reference to paragraphs 21 and 22 of the MLP, and regulation 6 of the regulations, it is conceivable that an employee might, for the four-week period before the expected week of childbirth, be entitled to sick pay at a time when she was in receipt of Maternity Allowance. I do not find it necessary to reach any conclusions on that possibility. In my judgment, the reference to Maternity Allowance in the sick leave section of the contract document does not operate to grant a right to sick pay, which is otherwise excluded in the case of employees on maternity leave, to which the MLP applies. It follows, in my view, that whether the Claimant relies on her statutory or contractual rights, the result is the same. She is not entitled to sick pay during maternity leave.