Mears v Safecar Security Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,SIR STANLEY REES |
| Judgment Date | 05 April 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0405-5 |
| Docket Number | 82/0159 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 April 1982 |
[1982] EWCA Civ J0405-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT
APPEAL TRIBUNAL
Royal Courts of Justice
Lord Justice Stephenson
Lord Justice O'connor
(Not Present When Judgment Delivered)
and
Sir Stanley Rees
82/0159
EAT 151/80
MS. PETER CLARK (instructed by Messrs. Robbins Olivey & Lake, Solicitors, London WC2R 1AU, agents for Messrs. Cartridge & Co., Solicitors, Exeter EX4 1AS) appeared on behalf of the Appellant (Appellant).
MR. ELDRED TABACHNIK (instructed by Messrs. Gilbert H. Stephens & Sons, Solicitors, Exeter EX1 1QE) appeared on behalf of the Respondents (Respondents).
We dismissed this appeal at the end of the hearing and now give our reasons for that decision.
On 21st January 1980 the Industrial Tribunal decided on a reference by the appellant employee Hears under section 11 of the Employment Protection (Consolidation) Act 1978 that
"the written statement dated 12th July 1978 of the terms of Mr. Mears' employment by the respondents ought to have included the following term: 'the Company will continue to pay your wages during any period of absence through sickness, but subject to deduction of all sickness benefits received by you under the Social Security Act 1975 in respect of such period'".
The Industrial Tribunal had to decide two issues; those they state at paragraph 9 on page 3 of their decision, page 15 of our bundle:
"(i) Whether a term is to be implied in Mr, Mears' contract of employment that the respondents will pay him his wages whilst he is absent through sickness. (ii) If the answer to that is Yes, whether a term is likely to be so implied that such wages will be paid without deduction of sickness benefit received by Mr. Mears from the State in respect of such absence".
On the first issue one member would have included a term that the respondents would not continue to pay the appellant's wages during any period of absence through sickness. But the majority disagreed with him. On the second issue the decision was unanimous, the minority member agreeing that if wages were payable during absence through sickness they were subject to deduction of sickness benefits received by the appellant under the Social Security Act 1975.
From the Industrial Tribunal's decision both Mr. Mears and the company appealed. On 14th November 1980 the Employment Appeal Tribunal dismissed Mr. Mears' appeal, allowed the company's cross-appeal and gave Mr. Mears leave to appeal. The effect of the Employment Appeal Tribunal's decision—which agrees with the opinion of the minority member of the Industrial Tribunal—is that Mr. Mears is not entitled to be paid wages during the periods when he was absent from work through sickness.
We have to decide which of the answers of these two tribunals to these two questions is wrong in law and so to answer the question what, if any, payment of wages is due to Mr. Mears under his contract of employment with the company during the periods of his absence through sickness.
Mr. Mears started working for the company on 9th July 1978 as a security guard. Soon after he was given a signed "Personal Contract Form", on which nothing turns, and "Terms of Reference", on which this appeal turns.
They are as follows; I read from page 5:
"TERMS OF REFERENCE
It is hereby confirmed that R.J. MEARS be engaged as a full time Patrolman/Static Guard as from 9th July 1978 at a weekly wage of £53.80 based on a 50 hour week, subject to three months satisfactory service.
The Company agrees to pay fifteen days holiday per annum after twelve months service, providing one month's notice be given in writing of the employee's holiday dates.
The Company also agrees that an annual bonus payable before Christmas will be awarded on the following basis: (After twelve months service).
Care of Company vehicles, equipment etc. Duties carried out satisfactory in accordance with instructions laid down by the Company. Personal appearance on reporting for duty.
It must be remembered that points will be lost for any disregard of the above requirements.
Two weeks notice must be given in writing either by the employee or the Company to terminate this agreement".
and it is signed by Mr. Mears, witnessed and dated 12th June 1978.
Thereafter Mr. Mears was off work sick for two periods amounting to nearly seven months out of the 14 months for which he was employed: 20th December 1978 to 15th January 1979, and 26th March 1979 to 18th September 1979. On 17th September 1979 he gave the company written notice that he was unable to carry out his duties, which they accepted on 19th September 1979. During the short time he worked for the company his take-home pay was £48.00 a week. During his periods of absence he was paid sickness benefit under the Act of 1975 amounting to £43.00 a week initially, and £33.00 a week subsequently, but he was not paid any wages. It is common ground that he never asked for them and that—I read from paragraph 5 of the Reasons of the Tribunal, on page 14 of our bundle—
"at no time, whether at the initial interview with Mr. Johns senior, or when Mr. Mears started work, or when he was given his written terms of employment, or on any other occasion, did anyone on either side ask or mention what would happen financially if or when Mr. Mears was off work because of sickness. At no point was the question of his wages or sick pay entitlement during any such period raised by anyone".
The company was a small family business run by a father and son named Johns with only 12 or 13 employees. In paragraph 8 of their Reasons for Decision the Industrial Tribunal said this:
"Mr. Mears, like Mr. Johns junior, was a patently honest witness holding nothing back and we accept his evidence that when his colleagues visited him whilst he was ill they talked about sick pay and told him that he would not get sick pay from the company. He frankly accepted Mr. Radway's suggestion in cross-examination that because he, Mr. Mears, never asked for sick pay it could be said this was because he thought he was not entitled to it (our underlining). When asked by the Chairman he said he would not mind if he had to bring his sickness benefit into account; that it was not fair to any company to get full wages and the sickness benefit on top but that most firms paid the difference. We equally have no difficulty in accepting Mr. Johns' evidence that it is not the policy of the company to pay sick pay and that had any employee or applicant for a job enquired about the position he would have been so informed".
Part 1 of the Act of 1978 treats of Particulars of Terms of Employment, and section 1 provides for written particulars of terms of employment in these terms:
"(1) Not later than thirteen weeks after the beginning of an employee's period of employment with an employer, the employer shall give to the employee a written statement in accordance with the following provisions of this section.
(2) An employer shall in a statement under this section—
(a) identify the parties;
(b) specify the date when the employment began;
(c) state whether any employment with a previous employer counts as part of the employee's continuous period of employment, and, if so, specify the date when the continuous period of employment began.
(3) A statement under this section shall contain the following particulars of the terms of employment as at a specified date not more than one week before the statement is given, that is to say—
(a) the scale or rate of remuneration, or the method of calculating remuneration,
(b) the intervals at which remuneration is paid (that is, whether weekly or monthly or by some other period),
(c) any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours),
(d) any terms and conditions relating to—
(i) entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the employee's entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated),
(ii) incapacity for work due to sickness or injury, including any provision for sick pay,
(iii) pensions and pension schemes,
(e) the length of notice which the employee is obliged to give and entitled to receive to determine his contract of employment, and
(f) the title of the Job which the employee is employed to do:"
I do not think I need read the proviso or any of the rest of the section.
Section 2 provides as follows:
"(1) If there are no particulars to be entered under any of the heads of paragraph (d) of subsection (3) of section 1, or under any of the other provisions of section 1(2) and (3), that fact shall be stated".
Section 4(1) provides:
"If after the date to which, a statement given under section 1 relates there is a change in the terms of employment to be included, or referred to, in that statement the employer shall, not more than one month after the change, inform the employee of the nature of the change by a written statement and, if he does not leave a copy of the statement with the employee, shall preserve the statement and ensure that the employee has reasonable opportunities of reading it in the course of his employment, or that it is made reasonably accessible to him in some other way".
Then section 8 gives the employee the right to an itemised pay statement, and section 9 gives him the right to a standing statement of fixed deductions.
Mr. Johns junior appeared...
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