THE INDUSTRIAL TRIBUNALS

CASE REF:	1140/14

CLAIMANT:			Geraldine Birt

RESPONDENTS:		Glasswater Retirement Home Lodge Ltd and Others

DECISION 
The claimant’s wages claim is not well-founded.  Accordingly, that claim is dismissed.

Constitution of Tribunal:
Employment Judge:	Employment Judge Buggy	
Members:			Ms L Gilmartin
				Mr I Atcheson

Appearances:
The claimant was represented by Mr G Kilpatrick, Solicitor.
The respondent was represented by Mr Philip Boomer.

REASONS

1.	The claimant was employed by the respondent company (“the Employer”) at Glasswater Lodge Retirement Home (“the Home”) for several years until 2014.  In October 2014, after the commencement of these proceedings, the claimant resigned from that employment.  

2.	Because of illness, the claimant had been unfit for work, throughout the period which began on 10 March 2014 and ended on the date on which her resignation took effect.  (In this Decision, that period is referred to as “the relevant sickness period”.)  

3.	The respondent did not pay the claimant anything other than statutory sick pay in respect of any part of the relevant sickness period.  

The claim

4.	When these proceedings were begun, they included several different types of claims.

5.	However, the claimant now complains only in respect of the failure of the employer to pay her anything other than statutory sick pay in respect of the relevant period of illness.  That is now the only act complained of in these proceedings (the only act or omission in respect of which compensation is claimed in these proceedings).  In this Decision, I refer to that “act complained of” as “the Act”.  

6.	In respect of the Act, the claimant’s cause of action now consists only of a claim under Article 55 of the Employment Rights (Northern Ireland) Order (“ERO”).  

7.	Initially, the claimant had wished to cite breach of contract as an additional, or alternative, cause of action in respect of the Act.  However, her breach of contract claim was rejected, pursuant to Rule 3 of the Industrial Tribunals Rules, because, In June 2014, when these proceedings were presented, the claimant was still employed by the Employer.

8.	Accordingly, the claimant’s claim in these proceedings now consists of a claim made under Article 55 of ERO, in respect of the non-payment of pay other than statutory sick pay, in respect of the relevant sickness period.

The liability issues

9.	The claimant says that it was a term of her contract of employment with the Employer that, in respect of any period of sickness, she would be paid (subject to credits for any statutory sick pay being paid), one month’s sick pay and one month’s half pay, for every completed year of full-time employment.  According to the claimant:

(1)	That was an explicit term of her contract of employment.  

(2)	Alternatively, it was an implied term of her contract of employment.

The claimant also argued that the amount of any award pursuant to Article 55 of ERO should be uplifted, pursuant to Article 27 of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”).

10.	The respondent’s position was as follows:  

(1)	It was denied that it was explicitly agreed that the claimant would be paid, during sickness, on the basis outlined at paragraph 9 above.  

(2)	It was denied that there was any implied term of her contract of employment to any such effect.  

The Employer argued that, in any event, the claimant was not entitled to an Article 27 uplift.

11.	Accordingly, in this case, there were potentially three main liability issues to be addressed:

	(1)	Was the claimant correct in her contention in relation to an explicit term of the contract?

	(2)	Was the claimant correct in her alternative contention regarding an implied term of the contract?

	(3)	Should there be an uplift, of any relevant award, pursuant to Article 27 of the 2003 Order?

12.	Because of the conclusions which we have come to in relation to issues (1) and (2), we have had not to address issue (3).  In the context of an unlawful deduction of wages claims, an Article 27 uplift only applies if the unlawful deduction of wages claim is successful : see Gultekin v Advanced Collection Systems Ltd (2015) UKEAT/0377/14, to which our attention was drawn by Mr Boomer.  

The evidence

13.	The principal witnesses were as follows:

(1)	The claimant and her mother, Mrs Geraldine Christie, gave evidence on the claimant’s behalf.

	(2)	For the Employer (which is a limited company), the main witnesses were Mrs Sarah Reid and her husband Mr Leslie Reid.

14.	We saw a bundle of documents.  We told the parties that, for evidential purposes, we would only have regard to any particular document within the bundle if our attention had been drawn to that specific document by one or both of the parties.

15.	We also saw some miscellaneous documents which were drawn to our attention by one or both of the parties.

The facts

16.	In the following sub-paragraphs we set out findings of fact which are relevant to the issues which we have had to determine in this case.  (For ease of reference, and in the interests of minimising avoidable duplication, we have included some additional findings of fact elsewhere in this Decision).

	(1)	According to the claimant’s claim form, the first-named respondent is “Glasswater Lodge Ltd”.  However, the proper title of that company is “Glasswater Retirement Home Lodge Ltd” and the title of these proceedings has been altered accordingly.  

	(2)	The other two respondents to these proceedings, Mr Leslie Reid and Mrs Sarah Reid, are the individuals who control the relevant company.  

	(3)	The Home was opened in 1989 and continues to operate.  The first owner, for practical purposes, was Mr Austin Reid, who was the proprietor of the Home from 1989 until 2008.  Sadly, Mr Austin Reid died in 2008.  When he died, the second-named respondent, Mr Leslie Reid (Mr Austin Reid’s son), along with Mr Leslie Reid’s wife, Mrs Sarah Reid (the third-named respondent), took over full operation and control of the Home.  

	(4)	The Home currently employs 27 members of staff.  It currently cares for approximately 25 residents.  

	(5)	From 2002 until February 2014, the Manager of the Home was Mrs Geraldine Christie, who is the claimant’s mother.  

	(6)	Throughout her time as Manager Mrs Christie always got on very well with Mr Austin Reid.  When Leslie Reid and Sarah Reid took over, she also initially had an excellent relationship with each of them.  That relationship continued to be very good until the Spring of 2014, when a number of complaints about the conduct of the Home were brought to the attention of Leslie Reid and Sarah Reid.  From then onwards, there was a poor relationship between Mrs Christie and the Reids.  Ultimately, the situation ended with a feud developing between Mrs Christie and her immediate family on the one hand, and the two Reids on the other hand.  

	(7)	Several of Mrs Christie’s relatives were employed in the Home, including the claimant, Ms Mandy Kearney (another daughter of Mrs Christie), Jackie Boyle and Jamie Boyle.  

	(8)	By March 2014, the claimant was the Deputy Manager of the Home (according to the claimant) or its Assistant Manager (according to the respondents).  It seems to us that it does not matter whether she was styled as Deputy Manager or Assistant Manager.  In either situation, she was one of only two staff in the Home who had a management role and, in that capacity, she was second-in-command and was junior only to her mother.  

	(9)	The claimant began to work on a part-time basis in the Home in October 2003.  She was employed as a part-time kitchen/                       care assistant more or less permanently from October 2003 until August or September 2009.  Throughout that period, she was also employed on a full-time basis (Monday to Friday) by Down District Council as a Finance Assistant.  

	(10)	Soon after the death of Mr Austin Reid, an extension of the Home was completed.  The effect of the extension was to increase the number of beds from 19 beds to 31 beds.  

	(11)	It was agreed between Mrs Christie and Mr Leslie Reid that it would be a good idea if the claimant could come and work at the Home in order to provide Mrs Christie with assistance in her role as Manager.  

	(12)	Accordingly, in August 2009, the claimant was asked by Mr Leslie Reid if she would like to come and work at the Home, in the role of assistant to Mrs Christie.

	(13)	The claimant accepted that offer.  Accordingly, she became a                    full-time employee of the Home from September 2009 until her resignation in 2014.  

	(14)	At first, the claimant was employed on an hourly basis, as distinct from a salaried basis.  In other words, she was paid for whatever hours were allocated to her, but she did not have a fixed weekly, monthly or yearly amount of remuneration, determined in advance.  

	(15)	We reject the suggestion, by and on behalf of the respondents, that the claimant’s terms and conditions of employment were the same as the terms and conditions of employment of all the staff of the Home other than Mrs Christie.  The reality, in our view, is that Mrs Christie and the claimant were Management and the other staff were not.  Therefore, there was no necessary congruity between the terms and conditions of other staff and the terms and conditions of the claimant.

(16)	At paragraph 7.4.2 of her claim form in these proceedings, the claimant purports to describe the terms and conditions allegedly agreed with Mr Leslie Reid, regarding sick pay, when she was offered and accepted the full-time post in 2009:-

		“Mr [Leslie] Reid agreed that [the Home] would, at least, match my terms and conditions of employment with my old employer.  This meant, in relation to sick pay, I would, in the first year, receive up to one month’s full sick pay and one month’s half sick pay and, in each subsequent year this would “build up” to a maximum of, after six years’ employment, six months’ full pay and six months’ half pay when off sick ... .”

(17)	In our view, the clear implications of that description, at paragraph 7.4.2 of the claim form, is that:

	(a)	the only relevant explicit statement being attributed to Mr Leslie Reid was that he allegedly said that he would match the claimant’s terms and conditions of employment in the Home with those which had been offered by her old employer; and 

	(b)	the claimant was asserting that, on the basis of that explicit statement relating to equivalency, she inferred that she was contractually entitled to one month’s full pay and one month’s half pay, as sick pay, for each year of service in the Home.

	In other words, according to the claim form description, the only explicit promise was that the Home would match all the terms and conditions of employment offered by Down District Council, and the alleged entitlements to sick pay were merely implications of that one alleged explicit promise.

(18)	However, in October 2014, in replies to the respondents’ Notice for Additional Information request, at Reply 1, a somewhat different version of events was given.  According to that version, Mr Leslie Reid, in offering the full-time post, explicitly stated that he would be providing one month’s full sick pay and one month’s half pay, for each year of service, in respect of any period of sickness.  According to that reply:

“In making the offer, Mr Leslie said that the Claimant would be no worse off than she was at Down District Council and he would give her the same terms and conditions in relation to matters such as holidays.  In relation to sick pay, Mr Reid stated that this entitlement would have to be earned and that after each year of employment the entitlement would increase as detailed in the Claim Form ... .”

(19)	The latter account of what was explicitly agreed in relation to sick pay was repeated in the claimant’s witness statement in these proceedings.  According to that account, at paragraph 10 of the witness statement, Mr Reid explicitly stated the following:

	“In relation to sick pay, Mr Reid stated this entitlement would have to be earned; after each year of employment the entitlement would increase, to a maximum of 6 months’ full pay and 6 months’ half pay in Year 6.”

(20)	The claimant never received a written statement of her terms and conditions of employment, at any time from August 2009 until the date of her resignation.  In particular, we reject the contentions by and on behalf of the respondents that the provision to the claimant, in her role as a manager, of “Management Guidelines”, which incorporated a generic standard form of contract of employment, constituted compliance, in relation to the claimant, on the part of the Home, with its legal duty to provide employees with a written statement of their terms and conditions of employment.

(21)	Throughout a significant period, up to and including the first half of 2012, the Home engaged the services of a Human Resources Consultant, Ms Marie Toner (of HR Direct (NI)), to provide advice and assistance in relation to the provision of written contracts of employment.

(22)	The claimant was on maternity leave from October 2011 until June 2012.  

(23)	During that period of maternity leave, in the spring of 2012, the claimant had a meeting with Ms Toner and Mr Leslie Reid during which two matters were discussed.  First, there was a discussion regarding the drafting of a written contract for the claimant.  Secondly, there was discussion about the claimant becoming a salaried employee (as distinct from her then current status as an hourly-paid, waged, employee).  

(24)	The outcome of the discussion in relation to the move to a salaried basis of employment was as follows.  It was agreed that, when the claimant returned from maternity leave, she would be on a flat rate fixed salary of £25,500.  That change had advantages, both for the employer and for the employee.  It meant that the claimant could be sure of the extent of her remuneration.  It meant that the employer could be sure of the limits of the claimant’s remuneration, in respect of any particular period.  

(25)	On both sides of the case, a common position, in this connection, had been adopted : Both parties told us that the only purpose or effect of the changes to a salaried basis for employment was as specified in the last preceding paragraph.  

(26)	According to the claimant’s witness statement:-

	“As part of these conversations, it was also reaffirmed that my sick pay would be earned incrementally, at one month full pay/ half pay per year up to a maximum of six months’ full pay/ six months’ half pay.”

We are not satisfied as to the accuracy of that part of the claimant’s testimony.  

(27)	In rejecting the claimant’s testimony in relation to that aspect of the matter, we have had regard, in particular, to the following.  First, when the claimant sent an email to Ms Toner in April 2012, regarding the issue of what should be included in her written contract of employment, she was asking for only one month’s full pay/ one month’s half pay at that time, although she was also asking that it be “increasing each year”.  Secondly, Ms Toner’s email of 1 June 2012 clearly shows that, at that time, Ms Toner was under the impression that the Home was under no pre-existing obligation to increase the claimant’s occupational sick pay entitlement for every year of service : in the third paragraph from the bottom of an                email which Ms Toner sent to Mrs Reid on 1 June 2012, she stated the following:

“ ... nor did I put in that the one month’s half pay (sick) would increase each year – that again is your call.”

(28)	In her witness statement, the claimant was clear that, at the time she accepted a full-time position, in the summer of 2009, Mr Reid had explicitly agreed that she would receive one month’s full pay and one month’s half pay for every year of service.  However, in the draft contract for the claimant, which Ms Toner prepared in June 2012, Ms Toner was intending to include only a proposed entitlement to occupational sick pay of one month’s full sick pay and one month’s half pay, even though, by that time, the claimant had been employed on a full-time basis for more than two years.  (If, in June 2012, it had been the common understanding, of Ms Toner and the claimant, that the claimant already had an existing contractual entitlement under which, for every year of service, she had a right to receive one month’s full sick pay and one month’s half sick pay, one would have expected Ms Toner to have put two months’ full pay and two months’ half pay into the clause of the contract which dealt with “Sickness Absence”.)

(29)	We are satisfied that, during the first quarter of 2013, the claimant was off sick on more than one occasion and that, on each of those occasions, she was paid full pay during the absence period.  

(30)	In June 2013, the claimant started another period of maternity leave.  That particular period of maternity leave ended in March 2014.  

(31)	Unfortunately, in the meantime, in December 2013, the claimant became seriously ill.  

(32)	In February 2014, Mrs Christie resigned from her employment in the Home.  

(33)	In March 2014, the claimant’s maternity leave came to an end and she went onto sick leave.  

(34)	Later that month, after Mrs Reid had temporarily taken over the management of the Home, she became aware of the fact that the claimant was getting full pay during that period of illness.  Mrs Reid then wrote to the claimant, on 24 March 2014, in the following terms:-

“As we do not have any contractual agreements in place with you with regard to sick leave payments, we will be paying your monthly salary in full, to include sickness pay during this pay period, as a gesture of goodwill. 

In the circumstances, please accept this letter as notice that, with effect from 25th March 2014, you will no longer receive sick pay for any further periods of sickness absence.  Instead, you will get SSP only.”

		(35)	According to paragraph 15 of Mrs Reid’s witness statement:-

“The Management Guidelines that were implemented for all employees on 12th April 2010 also describes in full the Home’s policy and all the arrangements for sick leave and sick pay.  This policy retained the Home’s practice for paying SSP only.  Pages 147 – 158 ... set out all the conditions that apply to sickness absence.  Page 149 specifically states that employees who are absent on sick leave are only entitled to be paid SSP.  There is no exception made for the Registered Manager or any other employee.  Moreover, the Guidelines also include a blank template employment contract ... that is issued to employees of the Home.  The company’s policy on sick pay and sick absence is included as an appendix to employment contracts as stated in Section 34 [of the template “Statement of Main Terms and Conditions of Employment – Individual”].”

(36)	Contrary to the assertions which are contained in the quoted extract from paragraph 15 of the Sarah Reid witness statement, we are sure that the relevant template conditions were not applied to this claimant (in particular, because of the fact that a specific, customised, draft, in relation to her written terms and conditions of employment, was under discussion in June 2012).  Accordingly, what the template conditions say, or do not say, regarding entitlement to occupational sick pay, is of somewhat peripheral relevance, in the circumstances of this case.

(37)	The reality is that the claimant never received written terms and conditions in respect of her contract of employment.  In particular, we note that the draft which Ms Toner had prepared in June 2012 was never accepted by the Home and that it was never rejected by the Home either.  The reality is that the draft was never agreed by the claimant and by the employer.  By the time of the relevant sickness period, no written terms and conditions of employment had been issued to the claimant.  

(38)	In June 2014, these proceedings were lodged by the claimant.

(39)	Later during 2014, the claimant resigned from her employment.  At the time of her resignation, she was still on sick leave.

The law

17.	At paragraphs 44 - 47 of Division B1 of “Harvey on Industrial Relations and Employment Law” (“Harvey”), there is a useful discussion about the situations in which an entitlement to contractual sick pay will be implied into a particular contract of employment.  At paragraph 44, the point is made that, in some of the older cases, the focus was on the nature of the consideration provided by the employee for her wages and that, under that approach:

(1)	If the true consideration for the employee’s wages was a willingness to work, and if the employee was prevented from working through some temporary illness or injury, she was nonetheless regarded as providing good consideration; and that, accordingly, subject to any specific agreement (between the relevant employer and the relevant employee) to the contrary, the view in the cases was that the employee was entitled to claim all her wages in respect of her entire sickness absence.

(2)	However, if the true consideration for the wages was actual work, then the maxim “no work no pay” applied; so that, in the absence of a term to the contrary, no sick pay was due.  

18.	As is also pointed out at paragraph 44, under the approach referred to at paragraph 17 above:

(1)	Salaried workers tended to be treated as falling within the first group and so were treated as being implicitly entitled to sick pay.  

(2)	By contrast, hourly paid workers tended to be regarded as falling within the second group and so were treated as not being implicitly entitled to sick pay.  

19.	Paragraph 44 also emphasises that, where this approach was taken, it was still important to investigate the terms of the mutual agreement, express or implied, between that particular employee and that particular employer.  Accordingly, the general rule (that hourly paid workers were not entitled to contractual sick pay and that salaried workers were entitled to contractual sick pay) was only a starting point; and, therefore, that general rule could be displaced by any terms of the specific agreement, express or implied, which might become apparent as a result of an investigation of the specific terms of the relevant specific contract of employment.  

20.	In our view, the legal principles referred to at paragraph 17 – 19 above are still valid, despite the subsequent developments in the relevant case law.  

21.	In our opinion, paragraph 46 contains the most significant aspect of the commentary which is to be found at paragraphs 44-47 (of Division B1 of Harvey).  Accordingly, paragraph 46 is worth quoting in full:

		“[46]

	The Mears decision concerned a security guard employed for fifty hours per week on a weekly wage. When he started working for the respondent there was no discussion about sick pay. In addition his statutory written statement of terms of employment was completely silent on the matter and despite having considerable sickness absence during his employment Mr Mears never asked for and was never paid any sick pay. He applied for a declaration of the particulars that ought to have been included in his written statement (at the time the relevant provisions were found in the Employment Protection (Consolidation) Act 1978 but are now contained in ERA 1996 Part I). At first instance the Industrial Tribunal found, by a majority, that a sick pay clause should be implied, following the decision in Orman v Saville Sportswear Ltd [1960] 3 All ER 105, [1960] 1 WLR 1055. In that case Pilcher J, having reviewed the authorities (including Marrison v Bell) held that wherever a contract was written and did not make express provision about sick pay, then the employee was to be presumed to be entitled to sick pay unless any agreement to the contrary could be inferred. In addition any such contrary agreement would not be inferred unless it could pass the 'officious bystander' or 'business efficacy' test for implied terms developed in commercial cases. However, the Court of Appeal in Mears disapproved both of those propositions. As a consequence the court allowed the company's appeal with the result that Mr Mears was not entitled to be paid wages when absent through sickness. In so deciding the court held that it was wrong to begin with any presumption in favour of sick pay. Instead the starting point is to try to ascertain what the parties agreed either expressly or impliedly. They also said that it was placing the burden of proof too high to require any implied term to pass the 'officious bystander' or 'business efficacy' test. Instead a tribunal should have regard to 'all the facts and circumstances of the relationship between the employer and employee concerned, including the way in which they had worked' when interpreting the agreement. The parties' subsequent conduct could be evidence of what they had agreed but had not reduced to writing (James Miller & Partners Ltd  v  Whitworth Street Estates (Manchester) Ltd [1970] AC 583, HL; L Schuler AG  v  Wickman Machine Tool Sales Ltd [1974] AC 235, [1973] 2 All ER 39, HL). Applying that test to Mr Mears' contract, all the facts and circumstances pointed against a term requiring sick pay. Lord Stephenson added that it was only in the rare case where there were 'no factors pointing either way, nothing for or against sick pay' that a court could 'resort' to the presumption that the wage was to be paid until the employment ended and 'that is what is left of the presumption attributed to Marrison v Bell'. However, those comments were strictly obiter and made expressly in the context of determining the appropriate particulars for inclusion in the statutory statement of terms. As a result it may be that the presumption does not operate at all outside those circumstances”.

Our conclusions

22.	In order to resolve the liability issues in respect of the claimant’s unlawful deduction of wages claim, we had to arrive at conclusions in respect of each of these questions:

(1)	In August 2009, when Mr Leslie Reid and the claimant agreed that she would come to work on a full-time basis in the Home, did they explicitly agree that the claimant would be entitled to contractual sick pay, to the extent contended for by the claimant, or at all? 

(2)	If not, was it an implied term of the claimant’s contract of employment, in August 2009, that she would be entitled to contractual sick pay?

(3)	If not, did it become an implied term of the relevant contract, at some later date, that she was entitled to contractual sick pay?

We have concluded that each of those questions must be answered in the negative.

23.	Not without hesitation, we have determined the first question in favour of the respondent.  In arriving at that conclusion, we have had regard to all of our findings of fact.  However, in this connection, we wish to draw particular attention to the following.

24.	In deciding whether or not the relevant alleged term of the contract was explicitly agreed in August 2009, we have noted that the onus of proof is not neutral and that, instead, the onus of proof is on the claimant.  Accordingly, unless we were satisfied, on the balance of probabilities, that the relevant term was explicitly agreed, we could not properly decide that aspect of the matter in favour of the claimant.  

25.	Mr Leslie Reid denied that he had agreed, during the relevant August 2009 conversation, to any sick pay arrangements.  We regarded Mr Reid as an unreliable witness, not least for two main reasons.  First, during the course of his testimony, he changed his account of events, in material respects, on more than one occasion.  Secondly, in the course of his testimony, he was vague on many matters about which he should have been able to provide details.  We also had some reservations about the claimant’s reliability as a witness (although she was a significantly more impressive witness than Mr Reid).  In particular, we noted the following.  First, at paragraph 7.4.2 of her claim form, the claimant asserted that the alleged contractual sick pay entitlements were offered in order “ ... to attract me to the post ...”, whereas the reality (as the claimant accepted during the course of her oral testimony) was that, at the time the job in the Home was being offered to her, she was already serving out her notice period in respect of her job with Down District Council.  Secondly, according to 7.4.2 of the claim form, the relevant agreed arrangement was that, in the first year, the claimant would receive sick pay of up to one month’s full pay and one month’s half pay and, in each subsequent year, this would “build up” to a maximum of, after six years’ employment, six months’ full pay and six months’ half pay while off sick.  However, in April 2012, when the claimant was already more than two years in the job, she was suggesting to Ms Toner, that she should then be entitled to only one month’s full pay and one month’s half pay, during any period of sickness, with the relevant sick pay entitlements increasing subsequently with each year’s service.  Thirdly, at paragraph 17 of her written witness statement, the claimant unequivocally asserted that Ms Toner had not been paid for work which Ms Toner had carried out for the Employer; however, subsequent correspondence from Ms Toner shows that the relevant assertion was inaccurate.   

26.	We are not satisfied, on the balance of probabilities, that the relevant term was explicitly agreed.  In arriving at that conclusion, we have of course had regard to the claimant’s demeanour and manner of giving evidence, and to Mrs Christie’s demeanour and manner of giving evidence, and to the matters mentioned in the last preceding paragraph above.  In that connection, we have also had regard to certain other matters.  First, we have noted the inherent implausibility of the proposition that a potential new employer, seeking to employ somebody who is currently serving out her notice (with her current employer), would offer to include such generous terms, regarding sick pay, in a proposed new contract of employment.  Secondly, we have had regard to the fact that, according to the offer of employment which was made in August 2009, the claimant was to be employed by the employer on an hourly basis, not on a salaried basis.  Thirdly, we note that the Toner documentation of 2012 clearly indicates that, at the time that documentation was being produced, Ms Toner was under the impression that the claimant then had no current entitlement to contractual sick pay.  

27.	According to Mrs Christie’s sworn testimony, the claimant told Mrs Christie, in the summer of 2009, that Mr Leslie Reid had agreed that, in the claimant’s new full-time employment in the Home, she would be entitled to sick pay on the basis that she would be paid full pay for a period of time and then half pay, and this was to build up on a yearly basis so that, in year one, she would receive up to full pay for one month and then half pay for one month of sickness absence, and on the basis that, after six years, she would reach a cap and receive up to six months’ full pay and six months’ half pay for sickness absence.  We reject that testimony, which we regard as inaccurate testimony.  We think it very implausible that, in the summer of 2009, the claimant would have reported to her mother, regarding her sick pay entitlements, in such precise and detailed terms.  We note that the relevant testimony is based on Mrs Christie’s recollection, in the summer of 2014, of something which had allegedly happened five years beforehand.  We also note that, in this connection, Mrs Christie is far from being an disinterested witness.  First, Mrs Christie’s actual or professed recollection of events, in relation to this matter, was clearly potentially helpful to her daughter.  Secondly, when Mrs Christie provided this testimony, she was herself pursuing a claim that, as manager of the Home, she had a contractual entitlement to contractual sick pay.  (Many people would think that, if this claimant had an entitlement to contractual sick pay, that would make it more likely that Mrs Christie had such an entitlement.)

28.	Next, we must look at the questions of whether or not the claimant’s contractual entitlements included an implied entitlement to contractual sick pay, either in August 2009, or subsequently.  On balance, and again not without hesitation, we have concluded that each of those latter two questions must be answered in the negative.  In arriving at those conclusions we have taken account of all of our findings of fact.  However, in this context, we wish to draw particular attention to the following.

29.	In arriving at those conclusions, we have been guided by the principles which were set out at paragraphs 44 - 47 of Division B1 of Harvey, which paragraphs have already been mentioned (at paragraphs 17 to 21 above).  

30.	In our view, before one begins to examine the specific context of a particular contract of employment, the starting point is that, if someone is paid on an hourly basis, as distinct from being paid a salary, that is an indicator against there being a contractual entitlement to sick pay.  We have of course carefully paid regard to the specific context of the making of the original full-time contract of employment.  Having done so, we see nothing about that context which tends to displace that “general rule”, (regarding the unavailability of an implied entitlement to contractual sick pay for people who are paid hourly, as distinct from being salaried).  

31.	In June 2012, this claimant ceased to be an hourly paid worker, and became a salaried worker.  However, on the basis of the evidence which has been given on both sides of this case, it is clear that, at the time of that change, both parties regarded the change from an hourly rate to a salaried basis for the relevant post as involving nothing more than a change which had the effect of giving the claimant certainty, and of giving the employer certainty, regarding the amounts which would be paid to her in respect of any particular future periods of employment.  According to the evidence and contentions on both sides of the case, there was nothing about the context of the agreed changeover (from hourly rate to salaried) which indicates that the change implicitly brought with it any modifications to sick pay entitlements.

32.	Prior to the relevant sickness period (as defined at paragraph 2 above), on more than one occasion, the claimant had been paid in full in respect of a period of sickness.  Normally, such a history would constitute powerful evidence in favour of the proposition that it was an implied term of the contract, or even possibly an explicit term of the contract, at the relevant times, that the claimant was entitled to contractual sick pay.  However, in this particular case, the potentially powerful influence of that history is greatly diminished, to the point of virtual elimination, by the circumstance that, on those earlier occasions, the person who was paying the claimant was the claimant’s mother (in Mrs Christie’s capacity as the manager of the Home).  We are sure that, when Mrs Christie was paying the claimant in full, in respect of those earlier periods of sickness, she was doing so on her own initiative, and that she was not thereby following any explicit or implicit instructions from Mr Leslie Reid in that connection.  (The latter conclusion is in line with the oral testimony both of Mrs Christie and of Mr Leslie Reid.)  The reality was that, in practice, at the times of those earlier sicknesses, Mrs Christie had had a broad discretion, regardless of the precise contractual position, whether to pay or not to pay; and that it is unsurprising that, on those occasions, she chose to exercise that discretion in favour of the claimant (in favour of her daughter).  

33.	It has been argued, by and on behalf of the claimant, that Mrs Reid produced a forged job description, in respect of Mrs Christie, to this tribunal, and that, accordingly, her evidence is thereby deprived of any credibility.  For the purpose for determining this case, we have not found it necessary to decide whether those contentions are correct or incorrect.  (According to the evidence on both sides of the case, the relevant conversation with Mr Reid, in August 2009, when it was agreed that the claimant would come and work at the Home, was a private conversation at which only the claimant and Mr Reid were present.  Therefore, even if we were to conclude Mrs Reid, in her evidence to us, had perjured herself, or that she had produced a forged document, that could have no effect on our assessment of the issue of whether or not the a relevant contractual provision was explicitly agreed, or was not explicitly agreed, during the 2009 conversation.  Similarly, Mrs Reid’s credibility is of no relevance to the question of whether or not it was an implied term of the contract of employment, either at the beginning or subsequently, that the claimant had an entitlement to contractual sick pay.

The delay

34.	We regret the delay in issuing this Decision.  Six weeks of that delay is the result of a query which was raised directly with the Office of the Industrial Tribunals, by the claimant personally, at the end of July 2015.  That query could not be addressed until a Case Management Discussion (“CMD") had been held.  It was not practicable to hold the relevant CMD until mid-September 2015.  

Employment Judge

Date and place of hearing:	5 - 6 March 2015; and
23 - 24 April 2015, Belfast

Date decision recorded in register and issued to parties: