Appeal No. UKEAT/0318/08/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 October 2008

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

MR G CAFAGNA	APPELLANT

ISS MEDICLEAN LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR G CAFAGNA
(The Appellant in Person)	
For the Respondent	MR S. H. MOON
(Representative)
Management Support Services
83 High Street
Great Barford
Bedford
MK44 3LF	

SUMMARY
UNLAWFUL DEDUCTION FROM WAGES
PRACTICE AND PROCEDURE:  Bias, misconduct and procedural irregularity

Unlawful deductions claim (sick pay).  The Claimant put in written representations under Employment Tribunal Rule 14(5).  The Respondent changed factual basis of defence 3 days before hearing.  Whether procedural unfairness in proceeding with hearing.  If so, whether result plainly and unarguably correct since no factual issue then arose.

HIS HONOUR JUDGE PETER CLARK

1.	This is an appeal by Mr Cafagna, the Claimant, before the Southampton Employment Tribunal, against the judgment of Employment Judge Twiss, sitting alone on 12 October 2007, dismissing his complaint of unlawful deductions from wages brought against his employer the Respondent, ISS Mediclean Limited.  That judgment was promulgated with reasons on 29 October.

2.	The issue related to the Claimant’s contractual entitlement to sick pay.  He commenced his employment with the Respondent on a two-day week part-time basis as a Hygiene Operative at Brighton Hospital on 30 August 2002.  

3.	The relevant contractual term as to sick pay, the Judge found (Reasons, paragraph 3) was that the Claimant, with his length of service, was entitled to a maximum of 12 weeks full pay for sickness absence in any 12 month rolling period.

4.	I pause to observe that that term is replicated in the Claimant’s written representations submitted under Rule 14(5) of the Employment Tribunal Rules at paragraph 5 and is consistent with a collective agreement between the Respondent and the GMB Union, which was incorporated into his contract of employment and which was before the Tribunal Judge and was exhibited to the Claimant’s written representations; he having unhappily been unable to attend the hearing due to ill health.

5.	I should clear up one lacuna in the Judge’s Reasons.  Having referred to the entitlement to 12 weeks full pay at paragraph 3, at other points, for example in paragraph 4 of the Reasons, the Judge refers to a maximum of 3 months in any 12 month rolling year.  I think the explanation for that is that at the hearing at which the Claimant was not present, the Respondent also put in an extract from the current NHS Sick Pay Scheme contractual term which itself refers to entitlement in terms of months rather than weeks.  The purpose of putting in that document, so Mr Moon tells me today, was to demonstrate the meaning of the expression ‘rolling 12 month period’, but it may be that in giving judgment the Judge referred to the period of entitlement in terms of months when the correct reference should be to 12 weeks full pay.

6.	At all events, the Judge interpreted the relevant term to mean that all absences in any rolling 12 month period should count towards his full sick pay entitlement.  Thus, once he had accrued 24 days absence in the previous 12 months the Claimant then moved to Statutory Sick Pay (SSP).  That is because his contractual entitlement was to half pay, but when pro-rated that would be lower than the SSP and that was paid as a minimum requirement.  There is no appeal before me against the construction of the contractual term.  

7.	By his Form ET1, lodged on 13 August 2007, the Claimant complained that for 14 weeks he had received SSP instead of full sick pay.  He claimed the difference by way of unpaid wages.  By their Form ET3, dated 10 September 2007, the Respondent contended that the claim related to a period after 29 April 2007 when he was entitled only to SSP.  At paragraph 7 of the pleaded Grounds of Resistance it was said that as at 29 April he had 9 days sickness in the previous 12 month period.

8.	As I have indicated the Claimant did not attend the hearing on 12 October but instead put in detailed written representations dated 4 October in accordance with the Employment Tribunal Rules of Procedure 2004, Rule 14(5).  It is clear that the Judge took those representations into account looking at his reasons, but it should be clearly understood that such representations may not have the same force as evidence given under oath at a hearing.

9.	In advance of that hearing the Respondent, although not directed to do so, produced two skeleton arguments.  The first was emailed to the Claimant on 9 October together with the index to the bundle of documents which the Respondent proposed to place before the Judge.  In that first skeleton argument of 9 October it was contended on behalf of the Respondent that the Claimant had in fact had 23 days sickness absence prior to 21 April 2007 and not the 9 days that were pleaded in the Form ET3.  The second Skeleton Argument, emailed to the Claimant on 11 October, altered that figure down to 22 days.  The Claimant accepts that he made no representations, by way of email of otherwise, to the Employment Tribunal in advance of the hearing as to this change of position by the Respondent.  Mr Moon, who appears on behalf of the Respondent, frankly accepts that notice of such a change in the Respondent’s case only some two to three days prior to the hearing was unfortunate.  I would go further and say that it showed a lack of proper preparation.  However, the question is whether the failure to advance that case earlier than 9 October amounted to procedural unfairness such as to result in this decision being set aside.

10.	I have raised with the Claimant the substantive question as to whether he disputes in fact the evidence that was eventually given on the day by Mrs Punter that he had had 22 days sick absence as at 21 April 2007.  He does not challenge that evidence.  Thus this is not a matter which would have moved to a factual dispute on the day of the hearing.

11.	I have been referred quite properly by Mr Cafagna to the Court of Appeal decision in Panama v London Borough of Hackney [2003] IRLR 278, a case in which the decision of the EAT, on which I sat, was corrected by the Court of Appeal.  In particular I am referred to the principal judgment of Hooper J, as he then was, at paragraph 55 where his Lordship said,

“I am doubtful whether the appellant [claimant below] on this issue had a fair hearing.”

And at paragraph 56 he continues:
“In my judgment it is not right that this appellant should have learnt about this very serious allegation [one of fraud] for the first time during the course of cross-examination.  [On that basis the proceedings below were unfair].”

12.	That case, it seems to me, is a world away from the present case where the point raised late in the day by the Respondent is one of fact which is not disputed by the Claimant.  In these circumstances it seems to me that the principal point taken in this appeal fails:  that is that the hearing was unfair.  It was open to the Claimant to take steps in advance of the hearing to challenge the factual case now being advanced on behalf of the Respondent, but since he did not challenge the factual case then there was no need for him to do so.  His point is purely one of procedure and wholly without substance.

13.	I would go further.  Even if I were persuaded that this amounted to procedural unfairness this is plainly a case on the facts where the principle in Dobie v Burns International Security [1984] ICR 812 applies, that is to say that the Judge’s decision was plainly and unarguably correct.

14.	The Claimant makes a further point as to two days of full sick pay.  That is dealt with at paragraph 7 of the Reasons.  As at 21 April he had had 22 days paid sickness.  A further week, taking him to 29 April would add two days.  That would be a total of 24 days or the equivalent of 12 weeks - his entitlement under the relevant contractual term.

15.	Mr Cafagna makes further points in relation to the adequacy of reasons given by the Employment Judge by reference to Rule 30(6) of the Employment Tribunal Rules of Procedure and the Court of Appeal judgment in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605.  He raises the question as to whether these reasons are Meek compliant, to adopt Sedley’s LJ expression coined in the case of Tran v Greenwich Vietnam Community [2002] EWCA Civ 553.

16.	I am quite satisfied, having heard the submissions of Mr Moon, that the reasons are adequate to explain why the Claimant lost.  I have already dealt with the interchange between the reference in paragraph 3 to 12 weeks full pay and then a maximum of 3 months pay in paragraph 4.  I see nothing in that.  As to paragraph 8 of the Reasons, that has to be read within the context of the reasons as a whole, and, as Mr Moon explained, deals with long-term sick employees, which was not the position prior to April 2007 in the case of the Claimant.

17.	In these circumstance, having considered the careful way in which the appeal is put by Mr Cafagna, I am unable to detect any error of law in the approach of the Judge and consequently this appeal fails and is dismissed.