DL-v-Department for Social Development (II) [2013] NICom 25

Decision No: C2/12-13(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INDUSTRIAL INJURIES DISABLEMENT BENEFIT

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 18 January 2012

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal from the decision of the appeal tribunal which sat at Belfast on 18 January 2012.

2.	For the reasons I give below, under Article 15(8)(b) of the Social Security (NI) Order 1998 I allow the appeal and refer the case to a differently constituted tribunal for its determination.

REASONS

	Background

3.	The applicant submitted a claim for industrial injuries disablement benefit to the Department for Social Development (the Department) on 16 December 2009.  She stated that a relevant industrial accident occurred on 23 August 2005 at her home.  On 21 December 2009 the Department decided that there was not an industrial accident as the event claimed as an accident did not arise out of and in the course of the claimant’s employment.  The applicant appealed.

4.	The appeal was considered by an appeal tribunal consisting of a legally qualified member (LQM) and two medically qualified members (MQM).  The appeal tribunal disallowed the appeal.  The applicant requested a statement of reasons for the tribunal’s decision and this was issued to her on 28 March 2012.  She then applied for leave to appeal to the Social Security Commissioner on 11 April 2012.  Leave to appeal was refused by the LQM by a determination issued on 26 April 2012.  On 3 May 2012 the applicant applied to a Social Security Commissioner for leave to appeal.

	The tribunal’s decision

5.	The tribunal had found that the facts were agreed by the parties.  Essentially these were that the applicant, who worked for the Social Security Agency as an administrative officer, had alleged to her employer that she was subject to bullying at her workplace.  The employer instigated an investigation of the matter and took a statement from the applicant.  Contrary to her employer’s normal practice, however, the content of the applicant’s statement was then inadvertently disclosed to the alleged perpetrator before that person had been interviewed.  The applicant, while at home on sick leave, was advised by a letter from her employer that the inadvertent disclosure had occurred.  The applicant contended that she suffered psychological injury as a result of reading the letter, that reading the letter amounted to an industrial accident and that this accident arose out of and in the course of her employment.

6.	The tribunal identified that the relevant legislation required the applicant to establish that:

	a.	an event or incident had occurred arising out of and in the course of her employment which can itself be described as an accident in accordance with the ordinary meaning of the word, or

	b.	that an event or incident had occurred arising out of and in the course of her employment which was not in itself an accident but which caused her to sustain personal injury unintentionally.

7.	The tribunal considered the facts of the case and relevant case-law (including R2/79(II)) and found that there was a requirement for the applicant to be engaged in her employment at the time of the inadvertent disclosure, but that she was not so engaged, being away from work on sick leave.

8.	Furthermore, the tribunal found that psychological injury can only constitute an industrial accident if at least partly caused by the work the applicant is doing at the time.  As she was not at work when she read the relevant letter, the tribunal reasoned that she could not establish the necessary causative link between the psychological injury and her work.

	Submissions

9.	The applicant submits that in disallowing her appeal the tribunal has erred in law as the incident in question arose out of and in the course of her employment since she was currently employed and involved in a statutory grievance procedure.  She submits that the incident was sufficiently linked causally to her employment and amounted to an industrial accident within the provisions of Article 29(6) of the Social Security (NI) Order 1998.

10.	The Department was invited to respond to the grounds of application for leave to appeal.  Mr Kirk replied for the Department.  He indicated that the Department opposed the application.  He indicated that he accepted that the incident in question was causally linked to the applicant’s employment but was not arising out of or in the course of her employment.

	Legislation

11.	By section 94 of the Social Security Contributions and Benefits Act (NI) 1992.

‘94.—(1) Industrial injuries benefit shall be payable where an employed earner suffers personal injury caused after 4th July 1948 by accident arising out of and in the course of his employment, being employed earner’s employment.

…

(2) For the purposes of industrial injuries benefit an accident arising in the course of an employed earner’s employment shall be taken, in the absence of evidence to the contrary, also to have arisen out of that employment.

…’

	Assessment

12.	I held an oral hearing of the application.  Ms Loughrey of Law Centre (NI) appeared for the applicant.  Mr Kirk of Decision Making Services appeared for the Department.  I am grateful to the representatives for their assistance.

13.	At the hearing, it was again accepted by the Department that the incident arose out of the applicant’s employment.  The Department disputed however, that the incident was also one which occurred in the course of the applicant’s employment.

14.	Ms Loughrey relied upon two decisions of the Court of Appeal in England and Wales.  These were Faulkner v Chief Adjudication Officer, reported as R(I)8/94, and Rhodes v Chief Adjudication Officer, reported as R(I)1/99.  Ms Loughrey relied on the judgment of Hoffmann LJ where he says:

“An office or employment involves a legal relationship: it entails the existence of specific duties on the part of the employee.  An act or event happens in “the course of” employment if it constitutes the discharge of one of those duties or is reasonably incidental thereto: Smith v Stages [1989] AC 928.  It follows that there are always two separate questions.  The first involves deciding what the employee’s duties were.  As Lord Thankerton crisply put it in Canadian Pacific Railway Co v Lockhart [1942] AC 591, 600 “the first consideration is the ascertainment of what the servant was employed to do”.  The second question is whether the act or event was in the discharge of a duty or something reasonably incidental thereto”.

15.	She submits that the applicant was employed as an administrative officer by the Social Security Agency.  The question was whether she was acting in the course of her employment or doing something reasonably incidental to their employment.  She submits that the applicant had a duty, in order to effectively perform her contractual duties as an administrative officer, to raise matters when things were not going well in order that they would not adversely impact on her ability to perform her duties effectively.  One of those duties was to bring a grievance and the applicant felt that she should bring a grievance in relation to non-specific bullying which undermined her ability to work effectively.

16.	Ms Loughrey submits that the incident of 23 August 2005 would not have occurred without the applicant invoking the grievance procedure.  In that context, she had an obligation to co-operate with her employer and comply with relevant deadlines, and reading the letter was part of her contractual obligations.  She submits that the right to bring a grievance was a contractual right linked to the applicant’s contract of employment and was reasonably incidental thereto.

17.	Mr Kirk’s submissions focused on the question of whether the applicant was under the control and direction of her employer at the relevant time.  His submissions relied on the principle articulated in R2/79(II) by Commissioner Reid, namely that:

“6. As a general rule the course of a person’s employment does not include hours for which he is not paid and during which he is subject neither to the control nor to the direction of his employers.  The course of the employment is generally interrupted when an employee leaves his employer’s premises at the end of a day’s work or at the beginning of a break in it and is not resumed until the employee has entered his employer’s premises to start work again”.

18.	I sought the parties’ comments on the decision of Great Britain Commissioner Howell in CI/1098/2004.  That case concerned an employee who was home on sick leave when he received a phone call asking him to contact a senior manager.  When he spoke to the manager he was told that a complaint of harassment had been brought against him and was being investigated.  Judge Howell found that this was ‘reasonably incidental’ to his employment.  Mr Kirk submitted that the element of instruction from a manager distinguished that case and meant that it was in the course of employment.  There was no such instruction in the present case.  He submitted that there was no obligation on the applicant to open a letter from her employer while on sick leave.  He submitted that while on sick leave an employee was not under the control and direction of an employer.

19.	I asked for further evidence concerning the standard terms and conditions of employment of a person employed by the Social Security Agency.  Mr Kirk provided this in the form of the Staff Handbook relevant to the date of the event claimed as an accident.  In written submissions made subsequent to the hearing, and, having had more opportunity to consider the decision in CI/1098/2004, Mr Kirk subsequently resiled from his submissions at hearing.  He accepted that the Department would send letters to individual employees who are on sick leave and that there would be an expectation that they would open and read the correspondence.  This meant that during periods of sick leave an employee was nevertheless under the control and direction of the employer.

20.	Having considered the relevant version of the Staff Handbook which contained the applicant’s terms and conditions of employment, I see no express requirement to open any letters from an employer.  However, I consider that it is implied by the express requirement to co-operate fully with investigations with the Occupational Health Service.

21.	Mr Kirk now concedes that the opening of the letter was something which was incidental to the applicant’s employment.  This means that there is no longer any significant dispute between the Department and Ms Loughrey on this point and that the parties are agreed that the decision of the appeal tribunal is in error of law.

22.	I accept that this concession is correct.  In particular, I acknowledge the importance of the passage I have cited from R2/79(II) to the application of the law to industrial accident cases.  However, I consider that Commissioner Reid was not purporting to lay down an absolute rule but a general rule.

23.	The core question in the present case was whether, when at home on sick leave and when opening and reading correspondence from her employer, was the applicant acting in the course of her employment?  On the facts of the case, I consider that the correct answer is that she was.

24.	I therefore hold that the tribunal was in error of law and I set aside the decision of the appeal tribunal.

Disposal

25.	The tribunal at first instance determined that the event of 23 August 2005 did not occur in the course of the applicant’s employment.  Having reached this determination, it did not then consider whether the event was an “accident” within the meaning of the legislation or the question of whether the applicant suffered personal injury as a result.  These are both questions of fact which need to be determined in order to establish whether or not there may be entitlement to benefit.

26.	In the light of the concession by the Department, I asked the parties for their views on how I should dispose of the appeal.  The Department submitted that I should remit the matter to a newly constituted tribunal for determination.  On the other hand the applicant’s representatives indicated that they were instructed by the applicant to ask me to decide the case.

27.	The remaining questions for determination are not matters of law.  The issue of whether there has been an “accident” is one which I could determine personally, just as well as a tribunal.  However, I consider that the question of whether the applicant has suffered personal injury is best left to an appeal tribunal which includes medical members.  For this reason, I remit the appeal to a newly constituted tribunal for determination.

(signed):  O Stockman

Commissioner

26 March 2013