Marrison v Bell

JurisdictionEngland & Wales
Year1939
Date1939
CourtCourt of Appeal
[COURT OF APPEAL] MARRISON v. BELL. 1939 Feb. 27. SCOTT, FINLAY and DU PARCQ L.JJ.

Master and servant - Contract of service - Illness of servant necessitating absence from work - National Health Insurance benefit received by servant during illness - Whether implied term in contract that wages to cease during receipt of benefit - National Health Insurance Act, 1936 (26 Geo. 5 & 1 Edw. 8, c. 32).

Illness of a servant, which, while it lasts, incapacitates him for the performance of his duties, but is not so long-continued or so serious as to terminate the contract of service, does not at common law suspend his right to wages under the contract.

Cuckson v. Stones (1858) 1 El. & El. 248; Warren v. Whittingham (1902) 18 Times L. R. 508; and Storey v. Fulham Steel Works Co. (1907) 24 Times L. R. 89, followed.

Warburton v. Co-operative Wholesale Society, Ld. [1917] 1 K. B. 663, observations applied.

The fact that during such illness the servant receives benefits under the National Health Insurance Act, 1936, does not deprive him of his right to wages under the contract of service, inasmuch as the benefits conferred by that Act are not in substitution for, but in addition to, the rights of the servant under the contract of service.

Elliott v. Liggens [1902] 2 K. B. 84 and Niblett v. Midland Ry. Co. (1907) 96 L. T. 462, distinguished.

APPEAL from Sheffield County Court.

John W. G. Bell (hereinafter called “the defendant”) carried on at his shop in Sheffield the businesses of a wholesale tobacconist, a fruiterer, and a hairdresser, which he had acquired in May, 1937, as successor to his father, John Bell, who died in that month.

By a contract of service between the defendant and Ernest Marrison (hereinafter called “the plaintiff”), entered into at the time when the defendant succeeded to the businesses, the defendant employed the plaintiff as a salesman of fruit and vegetables outside the shop at a wage of 3 l. 10 s. per week, the plaintiff having previously been employed by the defendant's father for about fourteen years in the same capacity and on the same terms.

The plaintiff was insured under the National Health Insurance Act, 1936, and the Unemployment Insurance Act, 1935, and both he and the defendant paid their respective contributions thereunder.

On Friday, December 3, 1937, the plaintiff was paid a week's wage.

On Saturday, December 4, 1937, the plaintiff went to work, but became ill through rheumatism and had to return home and go to bed, and was afterwards for a time a patient in the Royal Hospital, Sheffield, and continued to be unfit for work until the next mentioned date.

On Saturday, March 26, 1938, the plaintiff presented himself at the defendant's shop and told the defendant that he could resume work on Monday, March 28; but the defendant thereupon gave the plaintiff a formal week's notice expiring on Saturday, April 2, 1938, to terminate the contract of service, and tendered him a week's wage to dispense with his working during the week's notice.

The plaintiff was entitled to receive and received benefit under the National Health Insurance Act, 1936, during the period of his incapacity.

On April 2, 1938, the plaintiff again saw the defendant, when he took the said week's wage and received back his insurance card from the defendant.

On April 8, 1938, the plaintiff's solicitors wrote to the defendant stating the facts and adding: “Our instructions are that on Saturday, 26 March last, when our client presented himself at your place of business you gave him a week's notice. This was the first intimation our client had that you were terminating his employment. Our instructions are to apply to you for our client's 3 l. 10 s. a week up to the expiration of his notice on the 2nd instant.”

On April 11, 1938, the defendant wrote in reply: “In accordance with the terms of Mr. Marrison's engagement as a shop assistant he was given a correct and proper notice to terminate his employment with me. For your information, Mr. Marrison was duly paid 3 l. 10 s. on the 26th ultimo, in lieu of his working the week's notice.”

In October, 1938, the plaintiff brought the present action against the defendant in the county court claiming to recover 56 l. as arrears of wages for seventeen weeks from December 4, 1937, to April 2, 1938, at 3 l. 10&S a week less one week's wages paid; and setting out in his particulars of claim the above mentioned facts.

In his defence and counterclaim the defendant stated by way of defence that he disputed the plaintiff's claim on the grounds (1.) that he denied that in respect of the period of the plaintiff's absence from work the plaintiff was employed by him as a salesman or that the sum claimed was due from him to the plaintiff; (2.) that the contract of service between the plaintiff and the defendant was subject to the implied condition that it should be discharged in the event of the plaintiff being unable to perform his services through incapacity; and (3.) that, alternatively, the contract of service was broken by the continued absence from work by the plaintiff without the consent of the defendant, and that the defendant was thereby discharged from the contract: and by way of counterclaim the defendant said that he counterclaimed from the plaintiff the sum of 56 l. for damages for breach of contract, the particulars of the counterclaim being that the plaintiff was engaged by the defendant to give his whole time services as a shop assistant on a weekly engagement at 3 l. 10 s. per week, and that from December 4, 1937, to March 26, 1938, the plaintiff absented himself from the defendant's place of business without the consent of the plaintiff and failed to perform the services for which he was employed or any services.

At the trial of the action in the county court evidence was given on both sides. The plaintiff testified to the above mentioned facts, and further stated that when employed by the defendant's father he was once sick for three weeks, during which time he was paid his weekly wage less National Insurance contributions notwithstanding that another person was paid to do his work, and that during his illness he drew through his approved society 18 s. per week under the National Health Insurance Acts. The defendant stated that he paid all his contributions in respect of the plaintiff's health insurance and unemployment insurance, that any sick employee of his received sick benefit but no wages, that during the plaintiff's illness the defendant had to employ two assistants to do his work, and that he had no knowledge that his father paid wages to the plaintiff when the latter was sick. Mr. Dutton, another employee of the defendant, stated that when he was absent through illness he received no wages from the defendant but only benefit under the National Health Insurance Acts.

On November 18, 1938, the learned county court judge, His Honour Judge Essenhigh, gave judgment, of which a note agreed by the parties was as follows: “I find as a fact that Mr. Marrison never received any wages when off sick. Do not accept that he received it during that time. When off sick, in the absence of any express contract, no wages due. Employment still in existence but here there was no contract for any specific period. Case decided on its own particular facts. It is a question, if a man is not working by reason of sickness, he is entitled to wages. We have no authority at all in regard to position of a man under National Health Insurance Act, but I should be greatly surprised if I were told that it was the general practice of people to pay wages in addition to National Health Insurance benefit. Here is a man claiming 3 l. 10 s. per week for the period he was off sick. Already drawn 18 s. per week. Therefore claiming 4 l. 8 s. per week. I have it in evidence that Mr. Bell employed some one to do the work, an assistant and a girl during the whole of the period. It would be most inequitable if a man were asked to pay his contributions under the National Health Insurance Act and to have to pay in addition the man's wages, and to have to pay, in addition, some one for doing that work that the man is not doing. As far as I can see the National Health Insurance Act in such circumstances would be of no benefit to the employers and indeed it would be a burden, because the employer is being asked to contribute something for it, and he would not receive any benefit whatsoever. Applying the nearest authority, the case of Niblett v. Midland Ry. Co.F1, substituting the friendly society regulations in that case for the National Health Insurance Act, I am satisfied that this case is nearest to that case, and further it certainly is as near as can be to the case where one might use the words of Scrutton L.J. in the case of Warburton and Another v. Co-operative Wholesale Society, Ld.F2, where he said: ‘a servant incapacitated by illness …. does not cease to be employed unless the illness is such as seriously to interfere with or frustrate the business purpose of the contract.’ ‘But, though still in employment, he is not entitled to full or any wages while receiving sick pay under the rules or compensation under the statute.’ I am satisfied that the plaintiff has received what he was entitled to receive during that period, and that, therefore, the claim fails. Counterclaim withdrawn and struck out.”

The plaintiff gave notice of appeal to the Court of Appeal that so much of the judgment of the county court judge as adjudged that the plaintiff's claim should be dismissed might be set aside, and that in lieu thereof judgment might be entered for the plaintiff for the sum claimed, on the grounds (1.) that the judge was wrong in law in holding that a servant employed on a weekly engagement is not entitled to receive wages in respect of a period of absence from work owing to the servant's illness, unless the contract of employment expressly provides for the payment of wages in respect of such a period of absence; (2.)...

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  • Miles v Wakefield Metropolitan District Council
    • United Kingdom
    • House of Lords
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    ...I think, to be found in those cases the answer to the question posed above. The line of cases referred to was reviewed by Scott L.J. in Marrison v. Bell [1939] 2 K.B. 187, and they all stem from and follow the decision in Cuckson v. Stones (1858) 1 E. & E. 248, where the distinction is cle......
  • Mears v Safecar Security Ltd
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    ...1214, and (1981) Industrial Cases Reports, 409, Mr. Justice Slynn reviewed those authorities, which were the decisions of this court in Marrison v. Bell, (1939) 2 King's Bench, 187; Petrie v. MacFisheries Ltd., (1940) 1 King's Bench, 265; and O'Grady v. M. Saper Ltd., (1940) 2 King's Ben......
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1 books & journal articles
  • Constitutional Conventions and the Prince of Wales
    • United Kingdom
    • The Modern Law Review No. 76-6, November 2013
    • 1 November 2013
    ...certain correspondence betweenPrince Charles and seven government departments under section 1 of the77 See Cuckson ibid;Marrison vBell [1939] 2 KB 187. However, cf O’Grady vSaper [1940] 2 KB 469;Mears vSafecar Security Ltd [1983] QB 54.78 Bond vCav Co [1983] IRLR 360; Devonald vRosser (1906......

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