Legal Updates

Employment Law – Procedural Unfairness – Factual Determination – Sick Pay

The recent case of Cafagna v ISS Mediclean Ltd [2009] involved an employee that commenced proceedings against his employer on the grounds that a proportion of his wages had been deducted unlawfully. The employee in this case was employed as a hygiene operative on a part-time basis. He worked two days every week, and commenced his employment with the employer on the 30th of August 2002.

Under the terms of the employee’s contract he was entitled to a maximum of 12 weeks full sick pay in any 12-month rolling period. It should be noted that this figure related to the length of the employee’s service.

The employee initiated proceedings against his employer complaining that for a period of 14 weeks he had received statutory sick pay (“SSP”) instead of the full sick pay as stipulated in his contract.

He therefore made a claim for the difference by way of unpaid wages.

The employer argued that the claim related to a period which began after the 29th of April 2007, a period during which he was only entitled to SSP. This argument was resisted on the grounds that as of the 29th of April he had 9 days sickness in the previous 12-month period.

The hearing date for the case was set for the 12th of October 2007.

However, the employee neglected to attend the hearing, and instead submitted detailed representations for consideration.

Despite the employer having not been directed to do so, it produced two skeleton arguments in support of its case.

The first skeleton argument was e-mailed to the employee on the 9th of October. It stated that the employee had had 23 sick days absence prior to the 21st of April 2007, not the 9 days that were pleaded. The second skeleton argument, which was e-mailed to the employee on the 11th of October, amended the figure to 22 sick days.

The employee did not make any representations to the tribunal in advance of the hearing as to the change of position by the employer.

The tribunal elected to dismiss the employee’s complaint, and the employee duly appealed.

On appeal, the issue that had to be decided was as to whether or not the failure to advance that case earlier than the 9th of October amounted to procedural unfairness to such an extent so as to have the Tribunal’s decision set aside.

The appeal was dismissed.

It was held that in this case, the employee had been permitted to challenge the facts relied on by the employer before the tribunal in advance of the hearing, however he had neglected to do so. Even in the event that the matters complained of had been deemed procedurally unfair, it was held that the case was plainly a case to be determined on the facts, meaning that well established authority applied. Therefore, it was concluded that there was no error of law in the Tribunal’s approach and consequently the Tribunal’s decision had been unarguably correct.

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© RT COOPERS, 2009. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.