Appeal No.	 EAT/634/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 October 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
LORD DAVIES OF COITY CBE
MR T C THOMAS CBE

MR S MOXON	APPELLANT

IPSOS-RSL LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MISS M STACEY
(of Counsel)
Appearing under the 
Employment Law 
Appeal Advice Scheme

MR JUSTICE LINDSAY (PRESIDENT)

1	We have before us by way of a preliminary hearing the appeal of Mr Steven Paul Moxon in the matter Moxon v Ipsos-RSL Ltd.  Mr Moxon has this morning appeared by Ms Stacey under the ELAAS scheme and, although we have not needed to call upon her at any length, we thank her for the care with which she has addressed the matter.  

2	On 8 September 2000, Mr Moxon lodged his IT1 for unlawful and unreasonable waiting time for statutory sickness payment and for non-payment of generally agreed bonuses.  In his box 11 in the form he expanded his complaints to touch on sex discrimination and the absence of written terms of contract.  

3	On 28 September 2000 the employer put in its IT3 but the matter rather changed direction because on 20 February of this year the Employment Tribunal gave directions that the matter should be taken as a reference under Section 11 of the Employment Rights Act 1996. At this point, we ought to read into our judgment Section 11(1) of that Act:-  

“(1) Where an employer does not give an employee a statement as required by section 1, 4 or 8 (either because he gives him no statement or because the statement he gives does not comply with what is required), the employee may require a reference to be made to an [employment tribunal] to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the section concerned.”  

4	On 15 March of this year, there was a hearing at Sheffield and on 26 March the Decision was sent to the parties.  It was the Decision of a three person panel under the Chairmanship of Mr G R Little.  The unanimous Decision of the Tribunal was that they confirmed, for the reasons they gave, the particulars of employment in relation to statutory sick pay as they were set out in a memorandum dated 23 September 1999.  After referring to Section 11, the Tribunal said:
“We are asked to deal with one specific issue namely the arrangements for Statutory Sick Pay” 
4.The particular dispute between the parties is as to the proper definition in the context of this employment of “qualifying days”.  That is a term used in the Statutory Sick Pay (General) Regulations 1982”

A little later they say: 

“As matters stand the applicant does not complain that he has failed to receive any monies to which he is entitled and it is for that reason that his claim is not proceeding as it was originally pleaded, namely as one under the protection of wages part of the Employment Rights Act 1996”

5	The Employment Tribunal set out the Statutory Sick Pay (General) Regulations 1982, Regulation 5(2), which it might be as well to set out:
“Where an employee and employer of his have not agreed which day or days in any week are or were qualifying days (or where in any week the only day or days are or were such as are referred to in paragraph 3), the qualifying day or days in that week shall be:
(a) the day or days on which it is agreed between the employer and the employee that the employee is or was required to work (if not incapable) for that employer or, if it is so agreed that there is or was no such day;
(b) the Wednesday, or there is no such agreement between the employer and the employee as mentioned in sub-paragraph (a);
(c) every day except that or those (if any) on which it is agreed between the employer and the employee that none of that employer’s employees are or were required to work (any agreement that all days are or were such days being ignored).”

The Tribunal commented:
“Not, it has to be said, the most clearly drafted piece of legislation this tribunal has seen.”

The Tribunal noted, as we have already cited, that the Applicant did not complain that he had failed to receive monies and that hence the question became as they framed it to be.  They said of Mr Moxon:
“…..he did in or about September 1999 receive a memorandum headed ‘Statutory Sick Pay’ which although not dated as such, had from the word processor’s file information apparently been produced on 23 September 1999.  The memorandum says that interviewers (which is what the applicant is for these purposes) are classified as short time contract workers for Statutory Sick Pay General Regulations 1982 purposes and the memorandum goes on to deal with qualifying days in this way “As interviewers can work any day of the week, the qualifying days when Statutory Sick Pay General Regulations 1992 is payable has been determined as one day a week (Wednesday) as specified by the Benefits Agency Regulations.  Statutory Sick Pay General Regulations 1982 is only payable after three waiting days which have to be qualifying days.”  Although the applicant acknowledges receiving this memorandum it was not signed on behalf of the respondent and did not contain any notes or indication as to the significance or meaning of the reference to which we have just referred.  The applicant was not required to acknowledge receipt of the memorandum and he simply filed it.  As at that time he was working and not sick he thought little more of it.  The issue then arose later in that year when the applicant became unfit to work for the reasons we have explained.”

6	The Tribunal then turned, for the purposes of the introductory words of Regulation 5(2), to the question of whether the employer and employee had agreed which day or days were to be qualifying days.  They note the memorandum, which we have just referred to in that extract from the Decision and that the employer argued that Mr Moxon had acquiesced in Wednesdays being the identified qualifying days.  The Employment Tribunal rejected that; they said:
“Considering the text in Regulation 5(2) itself we do not accept that in this case there is between the parties any agreement as to which days are to be qualifying days.  In other words we do not accept the memorandum as such an agreement.  We do not consider that this was explicitly or implicitly made part of the contract.  We do not think that it is proper to assume that an employee has affirmed or acquiesced in a provision if the party seeking to impose the provision has not adequately explained the import and effect of that provision.”

7	Having rejected that, they therefore had to turn to the sub-paragraphs (a) (b) and (c) of Regulation 5(2) and they first consider 5(2)(a), and as to that they say this:
“In relation to sub paragraph (a) this will only apply if there was an agreement between the parties as to the day or days when the employee was required to work.  If, as is common ground in this case there was no such agreement then it is necessary to consider sub paragraph (b)” 

It may be important to note that it was there said to be common ground that it was agreed between the parties at the hearing that there had been no agreement as to the day or days on which Mr Moxon was required to work for Ipsos.  

8	Having, in consequence, held that the 5(2)(a) was inapplicable, the Tribunal went on to look at 5(2)(b), and as to that, they have, at paragraph 10 (iii) and (iv) (which I will not read in full) set out their response to 5(2)(b), and they concluded in 10(v):
“(v) It follows that the memorandum of September 1999 does correctly identify the qualifying day albeit not under the main text of Regulation 5(2) but by reference to Regulation (5)(2)(b).  
11. As our jurisdiction as provided for in Section 12 92) of the 1996 act is to confirm, amend or substitute particulars we are in this case confirming the particulars as they relate to Statutory Sick Pay and as they are set out in the memorandum.  It is only this limited task that is before us.”

The reasoning of the Tribunal in their paragraph 10(iii) was that only by construing the Regulations as they did could sense be made of them.  They say:
“The confusion in the drafting which we believe has misled the applicant into considering that sub paragraph (c) applies is that there are in fact two agreements referred to in sub-paragraph (a).  The first agreement envisaged by sub-paragraph (a) is that relating to the days when work is required.  The second agreement is effectively that there was no agreement as to the former.  However, when sub-paragraph (b) refers to “no such agreement” it does not stipulate which agreement it is referring to.  In order to make sense of the rest of the regulation we believe that the reference in sub paragraph (b) to “no such agreement” must be a reference to the first agreement envisaged in sub paragraph (a) i.e. as to the days the employee is required to work.”

Mr Moxon, on 27 April, put in his Notice of Appeal and he says:
“The words “no such agreement” in 5(2)(b) must refer to both of the agreements in (a); i.e. that there is firstly no agreement that certain days are required to be worked and secondly no agreement that there was no such day (i.e the situation where it is agreed that sometimes there will be no day when the employee is required to work; e.g., where the employee does one week on and one week off.).
This must be the case because otherwise, if the tribunal’s decision were correct, there would not be a situation where 5(2)(c) would ever come into play.
On the tribunal’s analysis, either there is an agreement on required working days, in which case 5(2)(a) applies; or there was no such agreement, in which case 5(2)(b) applies.  This would leave (c) redundant.  
Obviously, the law could not have been drafted with the intention of an interpretation that in no circumstances could one part of the law ever be applicable.”

9	It is easy to see the force of Mr Moxon’s argument that 5(c) should not be rendered redundant.  The Employment Tribunal, as we have seen, felt that they had to take the words in 5(2)(b) 
“if there is no such agreement … as mentioned in  ……(a).”
to refer only to a 5(2)(a) agreement as to required working days in order to make sense of the rest of the Regulations.  That may, in our view, be respectfully doubted.  It may be, for example, that in 5(2)(b), the words “or if it is agreed that there is or was no such day” contemplate only the case in which, by way of an earlier contractual term of the employment contract, it had already been agreed that there was to be no particular day in the week on which the employee was required to work for the particular employer.  Only if there was such an agreed term would Wednesday be then supplied as a qualifying day, by way of 5(2)(b).  In the more common cases, in which one would expect it to be that there was no such prior express contract term as a term of the employment contract, then sub-paragraph (c) would come into play.  Such a reading - we are not suggesting it is the only possible one - would at least give force to all the sub-paragraphs of the Regulation.  

10	We therefore see force in Mr Moxon’s argument and see his Notice of Appeal to be arguable.  Ms Stacey has mentioned that there may be questions of fact that need to be raised beyond questions merely of construction; it could therefore be that the Notice of Appeal might need to be amended and we will discuss this with her shortly, but, leaving aside the possibility of the need for amendment to the Notice of Appeal, we direct the Notice of Appeal to go to a full hearing.  We estimate it to take one and a half hours; we put it in Category B, and we indicate that skeleton arguments be exchanged not less than fourteen days before the hearing, and of course, sent at the same to the Employment Appeal Tribunal.  

11	Ms Stacey rightly says that this question may be a question that affects literally thousands of workers and we do say that, if the financial terms as to legal aid can be met by Mr Moxon, it would be a case which we would commend for legal aid in order that what is a question of wide applicability can be fully argued at the hearing.