Appeal No. UKEAT/0167/12/JOJ
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
7 February 2013
Before
THE
HONOURABLE MR JUSTICE MITTING
MR C EDWARDS
MR T STANWORTH
MS
C O’BRIEN APPELLANT
(1)
LONDON BOROUGH OF HARINGEY
(2) THE GOVERNING BODY
OF COLERAINE PARK PRIMARY SCHOOL RESPONDENTS
Transcript of Proceedings
JUDGMENT
SUMMARY
CONTRACT OF EMPLOYMENT
Sick pay and holiday pay
Implied term/variation/construction of term
Whether trip to school in Gambia undertaken with approval of head
teacher for purposes connected with the school was undertaken in the course of
the teacher’s employment, as defined in a collective agreement incorporated
into her contract of employment, for the purpose of determining entitlement to
full pay during absence caused by sickness contracted at the Gambian school.
THE HONOURABLE MR
JUSTICE MITTING
1.
The Claimant was a Year 3 teacher at the Coleraine Park Primary School. She began work there on 1 September 2009. Her personal conditions of
service incorporated the “Burgundy Book”, which contained provision for what
would happen to a teacher in the event that they sustained injury or became ill
during the course of their employment.
2.
The facts of this case are very unusual. In January 2010 the
school wanted to become part of an initiative being promoted by the British
Council. It involved creating links between schools around the world. If an initiative
proposed by a school was accredited by the British Council, three years’ worth
of funding for linking activities would be provided. The process required a
bid to be compiled. The person in charge of compiling the bid at the school
was a Mr Hsiao, another Year 3 teacher. One of the things that the school
wished to do to advance its application was to show some existing link between
the school and an overseas school. That would involve such activities as the
exchange of materials between the schools.
3.
Quite independently of this, the Claimant took a holiday in Gambia at Christmas time in 2009. She visited a local school there. On her return in
January 2010, she found out, apparently for the first time, about the
school’s intention to bid for British Council accreditation and suggested to
Mr Hsiao that the school at which both taught should be linked with the
school that she had visited in Gambia. Mr Hsiao said yes, but the
Claimant was to check with the acting head, Mr Tedscoe.
4.
Getting that conditional go‑ahead, the Claimant emailed the
headteacher of the school in Gambia, a Mr Janko, and asked if he was
interested. If he was, she would get permission to come in February and
exchange materials with him. Mr Janko sent a positive reply. The Claimant
then prepared a scheme of work and emailed it to him. It suggested a list of
activities that children in her class and in the school in Gambia would do during that half-term, leading to an exchange of the materials produced by each set
of children. The plan indicated that she would exchange the materials on a
visit that she intended to make to Gambia in the February half-term.
5.
Thus far the evidence was uncontroversial and was accepted by the
Tribunal. There was then a difference in recollection between the Claimant and
the acting headteacher Mr Tedscoe. The Claimant gave oral evidence;
Mr Tedscoe’s evidence was produced by a written statement, but he did not
give oral evidence. The Claimant said that she took her scheme to Mr Tedscoe
and explained that she would go to Gambia to exchange the material. Mr Tedscoe
said that the school could not pay for the trip. She said she didn’t mind
paying for it herself. She said that he then gave her “permission” to go. She
then discovered that it was necessary for her to fly out to Gambia on the last day of the half-term, Friday, 12 February. She told Mr Tedscoe that; he
agreed that she could take that day off with pay. Mr Tedscoe’s evidence
in his statement was that he Claimant asked him for special leave for
12 February as she was travelling to Gambia on a personal trip. He was
happy to grant that permission, as she wished to visit the school she had been
to on a previous holiday and with which she had been in communication.
6.
The Employment Tribunal resolved this difference of evidence in the
following way. It found it more likely than not that the Claimant put it to
Mr Tedscoe that the work plan should be approved and that she might take
the opportunity, while she was on holiday in Gambia, to exchange the material
generated in the course of the work plan. It also found that it was “most
unlikely” that the Claimant would have gone to Mr Tedscoe simply to ask
for paid leave on the day before the half‑term holiday on the grounds
that she needed to take a flight that day to enjoy a holiday in Gambia and even
less likely that he would have approved such a request. Accordingly, the
Tribunal, on that issue, accepted the Claimant’s evidence. That has a
consequence that we shall explain.
7.
Going back to the chronology, the Claimant made the trip; she spent two
sessions at the school, one of two hours and one of three hours. She met and
was in close contact with many children. She was virtually mobbed on arrival.
She spent time in class sitting close to children and reading to them in
groups. She took the material that her class had produced, together with some
books donated from the school library, and although the Tribunal does not so
find it seems implicit that she must have brought back material form the school
as well.
8.
Unhappily, she then fell ill. By the time that the case reached the
Tribunal, the cause of her illness was common ground: it was that she had
contracted, at least on balance of probabilities, cytomegalovirus during her trip
in February to Gambia and had contracted it as a result of contact with the
children there. She claimed that under the terms of her contract of employment
she was entitled to be paid during the period of her illness, initially
suffering and recovering from the virus and then from an illness consequential
upon it, which, it was accepted, was attributable to the virus. She relied on
clause 10.1 of a collective agreement made between the teaching unions and the
teaching employers and known as the Burgundy Book. We are told and accept that
her own terms of employment expressly included this clause. It reads:
“10. Contact with infectious diseases
10.1 When the approved medical practitioner attests that there
is evidence to show a reasonable probability that an absence was due to an
infectious or contagious illness contracted directly in the course of the
teacher’s employment full pay shall be allowed for such period of absence as
may be authorised by the approved medical practitioner as being due to the illness
[…].”
9.
Clause 10.1 went on to provide that such absence was not to be
reckoned against the teacher’s entitlement to sick leave.
10.
The issue that the Tribunal had to resolve was whether or not in the
circumstances that we have set out she sustained the illness in the course of
her employment. This was not an easy question to resolve, and in the course of
arguments addressed to us today, for which we are grateful, we have attempted
to tease out the principles by reference to which it should be resolved.
11.
The approach of the Tribunal was to pose the basic question that it had
to answer in the following uncontroversial way (paragraph 6.1):
“[…] the crucial issue is whether the visit by Ms O’Brien
to the school in the Gambia, was within the course of her employment.”
12.
It went on to break that question down into two (paragraph 6.3):
“The first was what was agreed between the school and the
claimant about any task that she was to perform whilst she was on holiday in
the Gambia, and the second is what she actually did.”
13.
The Tribunal went on to make the findings preferring her evidence to
that of Mr Tedscoe about what she and he agreed at their meeting before
she went. In analysing what had occurred, the Tribunal expressed itself as
follows:
“6.9 This is not a case where the school instructed, or even
asked Ms O’Brien to undertake a particular task. In the Tribunal’s findings,
she happened to be going on holiday to the Gambia in any event and volunteered,
as it was on her way, as it were, to undertake the exchange of materials.
6.10 It is the Tribunal’s finding that both parties saw the
arrangement as a teacher going on holiday taking the opportunity to deliver and
collect material from the school in the Gambia as she would be in the country
anyway. It was certainly not an official visit.”
14.
The Tribunal did, however, find that the Claimant’s attendance at the
school was “connected with her employment”. It then rephrased the basic
question that it had to ask as follows:
“6.14 The question is whether the visit to the Gambian school
and all that went on there was directly in the course of the claimant’s
employment. In the tribunal finding, it was not.
6.15 It was not authorised on the basis that Ms O’Brien was
making a visit on behalf of the school. Nor indeed was it executed on the
basis set out in the work plan. She went beyond merely the exchange of
material. […]
6.16. […] This was not part of the claimant’s normal duties. It
was her initiative, it was not an official visit, it was one made in a private
capacity, it was done during her holiday, and it was not her remit to engage in
activities at the school in the Gambia. Whilst it was connected with her
employment, the tribunal found that it was not directly in the course of it.”
15.
Consequently, it rejected her claim.
16.
Mr O’Dair, for the Claimant, submits that the Tribunal erred in law
in the approach that it took to the basic question: was the illness contracted
in the course of her employment? He submits that the appropriate test is that
which is applied in a different context and for a different purpose when
determining, for the purpose of vicarious liability, whether an employee is
acting in the course of his employment with his employer. He suggests that a
test based upon the observations of Nicholls LJ in Dubai Aluminium Co Ltd v Salaam
[2002] UKHL 48 at paragraph 23 should be applied:
“Perhaps the best general answer is that the wrongful conduct
must be so closely connected with acts the partner or employee was authorised
to do that, for the purpose of the liability of the firm or the employer to
third parties, the wrongful conduct may fairly and properly be regarded
as done by the partner while acting in the ordinary course of the firm’s
business or the employee’s employment.”
17.
He also cited with approval Professor Atiyah’s dictum that:
“The master ought to be liable for all those torts which can
fairly be regarded as reasonably incidental risks to the type of business
he carried on.”
18.
Adapted to the present context, Mr O’Dair suggested the following
formulation: “Is the risk fairly to be regarded as reasonably incidental to the
running of the school?”
19.
We do not find this approach to be determinative or even particularly
helpful. Vicarious liability rules are established fundamentally as a result
of a policy decision made by the law about the transference of liability for
risks created by wrongful acts by those acting as the employees or agents of
another person. What we are here concerned with is a different topic. It is
to determine what the two parties to the contract agreed should happen in the
event that the employee suffered from illness. Considerations of what
liability would be imposed by the policy of the law upon an employer have no
bearing upon that question. Our task is the familiar one in construing a
contract: it is to determine what the parties actually agreed.
20.
In the case of the terms contained in the Burgundy Book, the parties
have given us a strong clue. In paragraph 9.1, dealing with absences
arising from accidents, injury or assault at work, the agreement provides:
“In the case of absence due to accident, injury or assault
attested by an approved medical practitioner to have arisen out of and in the
course of the teacher’s employment, including attendance for instruction at
physical training or other classes organised or approved by the employer or participation
in any extra curricular or voluntary activity connected with the school, full
pay shall in all cases be allowed […].”
21.
There is, however, a difference in the treatment of that pay under clause 9.1;
that pay is to be treated as sick pay for the purposes of other provisions of
the agreement that we have not seen. Quite why there is a difference between
the treatment for sick‑pay purposes of pay under clause 9 and pay under
clause 10.1 we do not know; plainly, there must have been some good reason
for the distinction.
22.
What the parties have done in paragraph 9.1 is to state what in
their joint view was to be regarded as being “in the course of the teacher’s
employment”. It was to include attendance for instruction at physical
training, attendance at other classes organised or approved by the school or
participation in any extra‑curricular or voluntary activity connected
with the school. It is true that the parties did not spell out what they
regarded as included within the phrase “in the course of the teacher’s
employment” in clause 10.1, but we can see no reason why they should have
adopted a different meaning for “in the course of the teacher’s employment” in
clause 10.1 from that expressly adopted in clause 9.1. We are
therefore satisfied that as a matter of construction, and therefore of law, the
parties to this contract agreed that absence due to an infectious or contagious
illness contracted during participation in any extra‑curricular or
voluntary activity connected with the school was to be regarded as being in the
course of the teacher’s employment.
23.
The Tribunal laid emphasis on the word “directly” in paragraph 10.
It is not clear to us whether “directly” qualifies “contracted” or “in the
course of the teacher’s employment”, but on no view can it alter the meaning of
the phrase “in the course of the teacher’s employment”. If clause 10.1
had provided that an absence due to infectious or contagious illness contracted
directly or indirectly in the course of the teacher’s employment, it still
would not have told us what the meaning of the phrase “in the course of the
teacher’s employment” was. For that, we have only two sources of information:
first, the sense in which that phrase is generally used; and secondly, the
particular emphasis on facets of it that the parties have chosen to include in
the definition in paragraph 9.1.
24.
Applying that definition to the facts found by the Tribunal, we are on
balance driven to the conclusion that the illness contracted by the Claimant
was contracted in the course of her employment. The critical findings of fact
agreed or made by the Tribunal that lead to that conclusion are as follows.
The school wished to take part in the initiative proposed by the British
Council. To that end it required a link to be established with an overseas
school and the exchange of materials with that school. Although the proposal
that the link should be established with the school in Gambia came from the Claimant, it was approved and therefore determined by the acting headteacher
that it should be that school with which the link was to be made. The Claimant
required the permission of the acting headteacher for two purposes: first, to
take the day of school term off to permit her to go to Gambia; and second, to exchange materials, one side of which originated from her school, with the
school in Gambia. As the Tribunal expressly found, these activities were
“connected with her employment”. There is no material distinction between that
phrase and “connected with the school” in clause 9.1 of the Burgundy
Book. Although what she was doing did not fit precisely into the category “any
extra curricular or voluntary activity connected with the school”, it was so
closely analogous to it that it if the parties had thought about it, they must
be taken to have agreed that it should be included within it.
25.
The Tribunal’s findings that the visit to the Gambian school and all
that went on there were not “part of the claimant’s normal duties” and that it
was “her initiative, it was not an official visit” and that it was “not her
remit to engage in activities at the school in the Gambia” are not in point.
What had happened was that the acting headteacher had agreed that she should go
to the school with the permission of the school to exchange materials. It must
have been reasonably contemplated that for that purpose she would not simply
act as a postwoman but in the interests of furthering the links that it was
hoped would be established between the schools and for her school’s purposes
that she would go in the ordinary course of her visit beyond those simple
tasks.
26.
In the end, what she was doing was an activity undertaken with the
permission and approval of the school and connected with it. Accordingly, in
the extended definition given to the phrase “in the course of the teacher’s
employment” in clauses 9 and 10 of the Burgundy Book, because
she contracted an infectious illness during the course of that activity, she is
entitled to be paid under the provisions of clause 10. We add by way of
clarification that no issue arises as to the need for attestation by a doctor approved
by the school; it is accepted by the Respondents that the finding of the
Tribunal that her illness was probably contracted during her visit in February
to the school in Gambia suffices.
27.
For those reasons, this appeal is allowed.
