PLH                                                                            Commissioner's File:  CI 1098/04

	SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  	Disablement Benefit
Appeal Tribunal: 	Nottingham 
Tribunal Case Ref:      	
Tribunal date:	15 December 2003
Reasons issued:	29 January 2004

     1.     	This appeal by the claimant must be allowed, as in my judgment the tribunal chairman sitting alone at Nottingham on 15 December 2003 misdirected herself in law in holding that a telephone call the claimant had been asked to make to his Directorate Manager while at home on sick leave on or about 15 April 2002 could not be said to have been made in the course of his employment.  I set the decision aside and in accordance with section 14(8)(b) Social Security Act 1998 remit the case for rehearing and redetermination, by either the same or a differently constituted tribunal, of the claimant’s appeal against the refusal of an industrial accident declaration in respect of that conversation.  
     2.     	I direct the tribunal that for this purpose the telephone conversation between the claimant and his Directorate Manager was one arising out of and in the course of his employment notwithstanding that he had been at home when asked to make the call; but that it is for the claimant to establish to the satisfaction of the tribunal that he did in fact suffer something in the course of or as the immediate consequence of that conversation which is identifiable as an “accident” before he can be granted the declaration he seeks. This is something the tribunal must determine for itself, the apparent departmental acceptance that he has suffered some form of personal injury being insufficient.  In view of the course I am taking I decline the claimant’s request for an oral hearing of this present appeal, as it is concerned only with the single question of law on the “course of employment” point and I am determining that in his favour.
     3.     	The claimant is a man now aged 54 whose regular employment at the material time was as a staff nurse in a hospital in Nottingham.  On 1 August 2002 he applied for an industrial accident declaration in respect of the claimed psychological effects of a telephone call he had made from home to the Directorate Manager, a senior member of the hospital management, above the claimant's own line manager in the hierarchy.  He put the call as having taken place on 11 April 2002 but the tribunal found as a fact it was more likely to have been on 15 April 2002.  
     4.     	There is no dispute that such a telephone call did take place on or within a few days of that date, that the claimant was asked or told to make it, and that when he did so he was at home on permitted absence from work through sickness due to a previous injury he had suffered to his knee.  The claimant’s own description of what happened was that:
“I was at home having been off work “sick” (really the result of a previous industrial injury – I was attacked by a patient and wrecked my knee, plus I also have an arthritic disorder) – when I received a telephone call to call my Directorate Manager before returning to work.  I did so, to be told my unit manager had made a charge of harassment against me.  I was to be investigated by two investigating officers appointed by the Trust.”
He alleged that as a result he had suffered “psychological hurt/trauma”, anger, depression, and other symptoms he described.  
     5.     	His claim for an industrial accident declaration was rejected on the single ground that he had not been acting in the course of his employment when he made the telephone call, and this was upheld by the tribunal in its decision of 15 December 2003 and statement of reasons sent to the parties on 29 January 2004, at pages 286-288.  The tribunal chairman said that she had been guided in her decision by case law, and accepted the submission of the Secretary of State that 
“By being at home and off work … [the claimant] had taken himself out of his employment and therefore the accident did not arise out of and in the course of his employment.” 
She referred to the dictum of Lord Loreburn LC in Moore v Manchester Liners Ltd [1910] AC 498 that an accident befalls a man “in the course” of his employment if it occurs while he is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time to do that thing.  She pointed out that the claimant was not at his place of work, but at home; and after also referring to the decision of the Court of Appeal in case R(I) 1/99 CAO v Rhodes as showing that an employee at home on sick leave was not at work, and that an injury which befell her there though it arose out of her employment, did not arise in the course of her employment, concluded:  
“16.  When looking at the case of [this claimant] it is clear to me that the telephone call he made was connected to his employment, it was to a work colleague, however, it did not arise out of [sic] his employment.  There was no contractual requirement for him to make the telephone call.  He chose to do so.  He could have waited until he returned to work to make the telephone call.”
     6.     	In my judgment, even discounting the apparent confusion in the passage just quoted between the two questions so carefully differentiated in Rhodes, the tribunal chairman misdirected herself by regarding the two facts of the claimant being physically away from the place of work while at home on sick leave, and not being required by the terms of his contract of employment to make such a call to the senior management from home, as determinative that this call could not be said to have arisen in the course of his employment.  That seems to me too harsh an application of what the two authorities she referred to actually decided: and it fails to reflect what is established to be the true or “fundamental” principle governing such cases, as formulated by Lord Goff in Smith v Stages [1989] 1 AC 928 at 936B, cited and relied on by the majority in Rhodes, as follows:
“The fundamental principle is that an employee is acting in the course of his employment when he is doing what he is employed to do, to which it is sufficient for present purposes to add, or anything which is reasonably incidental to his employment.”
     7.     	As was further emphasised in the judgment of Lord Browne‑Wilkinson when sitting as the President of the Employment Appeal Tribunal in Marshall v Alexander Sloane and Co. Ltd., [1981] IRLR 264 (also referred to and followed by the majority in Rhodes), a person who is physically absent from the workplace because at home or in hospital off sick may nevertheless be doing particular things there at the request or with the agreement of the employer, that can be described as within the scope of their “work” and count as done in the course of their employment: for example if a person recovering from a broken leg is given some files to work on while in bed.  That part of what the Court of Appeal said in Rhodes does not appear to me to be addressed in the tribunal chairman’s decision in this case; and I am satisfied that if it had been, the only reasonable conclusion that could have been drawn from the undisputed evidence is that this particular telephone call, beyond argument of a nature within the scope of the claimant’s employment to make had he been asked to make it from a desk at the workplace, did not alter its nature as a “work call” because he was asked (or by his account, told) to make it from home while still on sick leave and before he returned to work.  It does not seem to me to matter whether the message that the claimant was to ring the Directorate Manager before returning to work was phrased as a request or a command:  the relevant test as formulated in the judgment of Schiemann L.J. in Rhodes, supra, is whether it was something the employee had been “specifically asked” to do that day.  It would of course be unusual and unreasonable to expect an employee receiving a message to ring a member of senior management from home in such circumstances to reach for the contract of employment and only comply if some specific contractual requirement to comply with such an instruction was found there.  It would also in my judgment be inconsistent with what the Court of Appeal said in Rhodes and with the “reasonably incidental” part of Lord Goff’s fundamental principle, judged against which the tribunal’s approach of looking for a “contractual requirement” is again too narrow.  
     8.     	For those reasons, I allow the appeal and remit the case for redetermination of the industrial accident question on the basis that the evidence shows this particular phone call the claimant had been specifically asked to make from his home to a member of senior management was within the course of his employment.  As I indicated when granting leave to appeal, there is an obvious further question in this case on whether the claimant’s psychological difficulties can be accepted as stemming from anything that can be identified as an “accident” suffered by him in the course of this telephone conversation or its immediate effects. His difficulties in establishing this may be substantial, not least because of his claim in the letter of 25 July 2002 to have been forced off work in the first place by his unit manager: page 138.  I agree with the submission by Mrs Jo Finch on behalf of the Secretary of State dated 9 August 2004 at pages 314-315 that the present evidence falls well short of what would be required to show the claimant to have suffered an “industrial accident” by means of this telephone call.  It is of course understandable that so far neither the Secretary of State nor the  tribunal have thought it necessary to go into that question in the depth needed, in view of the decision on the course of employment, but in my judgment that is something that must now be inquired into and determined properly by the tribunal.  I therefore remit the case for that to be done and the claimant will of course have the opportunity of submitting any relevant medical or other evidence at the further tribunal hearing to show what actually happened during and after the telephone call to make this a case of “injury by accident” within section 94 Social Security Contributions and Benefits Act 1992.

(Signed)

P L Howell
Commissioner                            
10 November 2004