THE INDUSTRIAL TRIBUNALS

CASE REF:    2064/11  

CLAIMANT:	Martin McKinney

RESPONDENT:	Belfast Health & Social Care Trust 

DECISION

The decision of the tribunal is that the claimant has not suffered an unauthorised deduction from wages and the tribunal dismisses the claimant’s claim.

Constitution of Tribunal:

Chairman (Sitting alone):	Ms Bell

Appearances:

The claimant was represented by Ms Catherine Arkinson of NIPSA.

The respondent was represented by Ms Eadaoin Ward of the Directorate of Legal Services. 

THE CLAIM AND RESPONSE

1.	The claimant complained in his claim that following a period of sickness absence from his post at Belfast City Hospital from July 2010 that he had suffered an unauthorised deduction from wages between January 2011 and June 2011 as a result of the respondent failing to provide him work and pay him full pay  for the period after he informed the respondent  at a meeting with management in January 2011, that he was fit to return to work immediately to a different post away from the Belfast City Hospital site because of stressors associated with individuals working there. The claimant confirmed that the issues with his June pay were subsequently rectified. The claimant complained that he was willing to undertake a temporary role whilst on the ‘ill health re-deployment list’ until a substantive post was identified for him and that he was concerned that the respondent’s advice to him to continue to submit GP fit notes between January 2011 and May 2011 and to continue to claim sick pay in relation to SSP could be considered as benefit fraud and that despite raising a grievance with the respondent the issue remained unresolved. 
 
2.	The respondent in its response resisted the claimant’s claims.  It contended that the claimant was off sick from 13 July 2010 with stress and that it’s occupational health consultant advised on 15 December 2010 that the claimant could return to work but not to his contractual position, so the respondent met with the claimant on 27 January 2011 to discuss redeployment, at this meeting the claimant formally advised the respondent that he was fit to return to work and in light of the occupational health department’s assessment the respondent’s redeployment policy was outlined to the claimant and followed which provides for the respondent to attempt within an 8 week time frame to find a suitable ‘redeployment position’.  The claimant was advised to continue to submit absence certificates under that policy and in accordance with the Department for Social Development guidance document – Statement of Fitness for Work (A guide for employers) under which it considered the claimant to be unfit for his contractual post and that he would remain so until a suitable post through redeployment was available.  In compliance with its policy, it made reasonable offers of other positions to the claimant on 28 February 2011 and 3 March 2011, both of which were declined but the second offer subsequently accepted, and during this period the claimant received sick pay and was not entitled to full pay until he returned to work, which could have been earlier if he had accepted the offer of redeployment from the date of the first or second offer.  The respondent confirmed that a grievance meeting was held to consider the claimant’s grievance on 17 August 2011 but this was not upheld. The respondent also raised a potential time issue as to the date proceedings were issued, being 6 September 2011 if the last deduction was made in May 2011. 

3.	At the commencement of the hearing the parties confirmed that the only issue remaining to be determined by the tribunal was ‘what should the claimant have been paid for the period between 27 January 2011 and 6 May 2011?’  Whilst the respondent paid the claimant half full pay by way of contractual sick pay on the basis that the claimant was not fit to return to his actual contractual post the claimant contended that he should have received full contractual pay as he was able, willing and available to work in another post, the agreed difference in pay being a maximum of £1,515.15 net.

ISSUES

4.	The issue before the tribunal was :

	-	Has the claimant suffered an unauthorised deduction from wages? 

EVIDENCE

5.	The tribunal considered the claim, response, agreed bundle of documentation, agreed statement of facts and case law submitted by the parties.

FINDINGS OF FACT

6.	The claimant was originally employed by the respondent as a driver in Belfast City Hospital by contract dated 8 November 2002.  Details of his duties were outlined in his job description and provision also made that ‘as and when considered necessary or appropriate you may be required to undertake such other duties commensurate with your grade/level in the organisation in order to meet fluctuations or priorities in work demands.’ In April 2007 the claimant was redeployed for reasons including health grounds to an Admin & Clerical post Band 2 (Enquiries desk) at Belfast City Hospital.  

7.	The claimant’s terms and conditions of employment provide for payment for absence due to sickness at full pay for the first period of six months and half pay for the second period of six months absence.

8.	The claimant became absent from work on sick leave with stress from 13 July 2010.

9.	The respondent has a management of attendance policy outlined in its Management of Attendance Protocol dated July 2010. 

Section 3.3 of the protocol outlines the respondent’s sickness certification procedures and the new fit note system introduced from 6 April 2010.  Page 16 of the policy advises;

‘if the doctor has indicated that the employee ‘may be fit for work taking account of the following advice’, the manager must consider the suggestions made by the doctor ……’ 

and continues

‘2)	Where it is not possible to provide the support for the employee to return to work, the Manager should use the statement as if the doctor had advised ‘not fit for work’ and should process the fit note to salaries and wages in the normal way.’

Section 8 deals with redeployment on health grounds and provides;

‘8.1 On occasions the Occupational Health Department may recommend redeployment as a means of retaining an employee in useful employment. This may be on a permanent or temporary basis depending on the circumstances of the case. The employee can, on health grounds, be transferred to another post in another department within or outside of their Service Group if it is deemed suitable in terms of improvement to their health and to help sustain employment for the individual without the loss of essential skills to the organisation.

Where alternative employment is being sought for an employee who is found permanently unable to return to their post as a result of a health related problem, a search will take place during a time limited period of no longer than 8 weeks from the point when it was agreed that the search would begin.

Consideration for redeployment is limited to vacant posts which the Occupational Health profession deem suitable on health grounds. The employee must meet the basic criteria or have equivalent experience, and be deemed suitable for the post being considered for redeployment.

It is expected that the employee will show some flexibility in the posts being considered. Alternative employment at the same grade or hours cannot be guaranteed and protection of pay will not apply. Payment will be made at the appropriate level for the new role.

…….’

And 

‘8.2 Where Alternative Employment cannot be found
The Trust will endeavour to meet the needs of the employee to assist them to remain in useful employment. However, if at the end of the 8 week period suitable alternative options cannot be found, consideration may be given to termination on the grounds of ill health (see section 9) or retirement on ill health grounds ( section 8)………’

10.	The Department for Social Development (DSD) ‘Sick Note, A guide for employers’ 	dated March 2010 advises at page 7 on ‘Fit for work? The basics’ that on the new 	[fit note] form doctors will be able to advise one of two options, the first being not fit 	for work, or the second option ‘May be fit for work taking account of the 	following advice- this means the doctor’s assessment of your employee is that 	their condition does not necessarily stop them from returning to work. For example, 	they could return to work but may not be able to complete all of their normal duties, 	or they could benefit from amended working hours.  If it is not possible for you to 	provide the support for your employee to return to work, you and your employee 	should use the statement as if the doctor had advised ‘not fit for work’……’

11.	On 15 December 2010 the respondent’s occupational health consultant Dr Wendy 	Losty a consultant clinical physiologist reported after assessment of the claimant 	and discussion with Dr Tohill that the claimant had an underlying condition which 	affected his ability to cope with particular stressors and advised that ‘redeployment 	to another post would facilitate his return to work. Posts which are located in areas 	of the city in which he feels unsafe would not be optimal.

I will be seeing Mr McKinney again to discuss the way forward’

12.	On 13 January 2011 Dr Losty confirmed that ‘any Band 2 post should be 	considered.  As previously noted some geographical areas of the Trust would not 	be suitable due to concerns connected to his underlying condition.’ 

13.	A meeting was held by the respondent with the claimant on 27 January 2011 at 	which the claimant formally notified the respondent that he was fit to return to work 	to another post off the Belfast City Hospital site, redeployment was discussed with 	the claimant and it was agreed that the respondent would initiate a search for a 	redeployed post. 

14.	The respondent in accordance with its attendance policy and the DSD guide 	continued to treat the claimant as unfit to return to work whilst an alternative 	suitable post was looked for in accordance with its redeployment policy.

15. 	On 24 February 2011 the post of Ward Clerk was accepted by the claimant but 	withdrawn by the respondent when it was confirmed this post was at an unsuitable 	location for the claimant.

16.	On 28 February 2011 a post at Knockbracken was offered to the claimant but was 	rejected by him.

17.	By letter dated 1 March 2011 the respondent outlined the redeployed posts offered 	to date to the claimant and advised that the trust would endeavour to find another 	suitable post, however, if at the end of the 8 week period (24 March 2011) suitable 	alternative options could not be found, consideration might be given to termination 	on the grounds of ill health or retirement on health grounds.

18.	On 3 March 2011 a post in health records at Royal Victoria Hospital was offered to the 	claimant and initially rejected but subsequently accepted, with effect from 6 May 	2011, following further advice on its suitability from the respondent’s occupational 	health department.

19.	The claimant considered that he had suffered a series of unauthorised deductions 	between January 2011 and June 2011 although issues relating to his June 2011 	pay have since been resolved. 

20.	The claimant raised a grievance regarding his pay which was heard by the 	respondent on 17 August 2011 but not upheld.

21.	The claimant’s claim was presented to the Office of The Industrial Tribunals on 6 	September 2011.

22.	It was agreed that subject to liability that the claimant’s maximum loss of net pay 	between 27 January 2011 and 6 May 2011 was £1,515.15.

THE LAW

Unauthorised deduction from wages

23.	Article 45 of the Employment Rights (Northern Ireland) Order 1996 provides for a worker’s right not to suffer unauthorised deductions from wages by his employer.  A deduction occurs when the employer pays less than the amount due on any given occasion and includes a failure to make any payment.

APPLICATION OF LAW TO THE FACTS

24.	No issue was raised at hearing regarding the time point referred to in the 	respondent’s response and the tribunal is satisfied that there is no apparent 	jurisdictional issue taking into account the transitional arrangements of The 	Employment Act (Northern Ireland) 2011 relating to the repeal of the statutory 	grievance procedures.

25.	It was submitted on behalf of the claimant that under common law an employee 	who is ready and willing to work is entitled to be paid wages, even though there is 	no work available for him unless there is provision in the contract which enables the 	employer to withhold payment as supported by the case Beveridge V KLM UK Ltd 	EAT/1044/99. It was put that the claimant’s contract of employment allows a level of 	flexibility to undertake alternative duties as long as they are commensurate with the 	employee’s grade and can be any role across the organisation and therefore there 	is an implied duty to pay wages to the claimant as an employee who was at least 	ready willing and able to perform work, the onus being on the respondent to provide 	that work. Whereas it was the respondent’s case that the facts of this case differ 	from Beveridge, that the claimant had a contract of employment for a particular 	post, that he  was unable to fulfil his contractual obligation to work for health 	reasons and in that situation he was entitled to pay under the respondent’s sick 	policy which is half pay.

26.	On consideration of all the evidence and submissions before it the tribunal is 	satisfied on a balance of probabilities as follows:

27.	There is no contractual entitlement for the claimant to be provided by the 	respondent with a redeployed post immediately upon the need for one arising nor a 	temporary one in the interim. The respondent’s policy clearly provides for it to 	endeavour within an 8 week period to locate a suitable redeployed post but where 	this is not possible it may result in termination of employment or retirement due to ill 	health. 

28.	The facts of this case differ from the case of Beveridge. An employee who has 	been unwell and absent from work who becomes fit to return to his actual 	contractual position is clearly entitled to be paid for same and should the employer 	be responsible for delaying a fit employee’s return to work when the employee is 	ready able and willing to carry out  the duties of his actual job, clearly the employee 	should be entitled to receive his full pay for the period of delay caused by the 	employer in the absence of an express contractual provision allowing him to do so. 	The tribunal however considers that the position is very much different, as in the 	claimant’s case, where an employee is fit to return to a different job in the same 	band, but not his actual job, where there is no contractual entitlement for the 	employee to be provided with a different post immediately upon the need for one 	arising and as such the employee remains unfit for his contractual position. The 	tribunal is not persuaded that there was an implied duty for the respondent to pay 	the claimant full pay when he was fit to undertake suitable alternative duties 	commensurate with his grade but not his actual contractual position. The term 	referred to in the claimant’s contract requires him to be flexible and undertake other 	duties as needed by the respondent rather than allowing for the claimant to insist 	that he be allowed to undertake other duties. 

29.	The tribunal considers that the respondent was correct in accordance with its policy 	and DSD guidance to continue to treat the claimant as unfit to return to work whilst 	he was unfit to return to his actual contractual position and it was unable to provide 	the advised support by way of a suitable redeployed position.  

30.	The tribunal is satisfied that the claimant has received the full amount of pay to 	which he was properly entitled under his contract of employment between 27 	January and 6 May 2011, being half pay during his second period of six months 	sick absence, when although fit to return to a different suitable job, he remained 	unfit to return to his actual contractual post on the enquiries desk at Belfast City 	Hospital. 

CONCLUSION

31.	The decision of the tribunal is that the claimant has not suffered an authorised 	deduction from wages and the tribunal dismisses the claimant’s complaint.

Chairman:

Date and place of hearing:	6 December 2011, Belfast.

Date decision recorded in register and issued to parties: