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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Miller v. 5M (UK) Ltd [2005] UKEAT 0359_05_0112 (1 December 2005) URL: http://www.bailii.org/uk/cases/UKEAT/2005/0359_05_0112.html Cite as: [2005] UKEAT 359_5_112, [2005] UKEAT 0359_05_0112

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APPEARANCES

 

For the Appellant

MR GULLICK (Of Counsel) As instructed by: Messrs Lyons Davidson Solicitors Oriel House 52-54 Coombe Road New Malden Surrey KT3 4QP

For the Respondent

MR TAYLOR (Of Counsel) As instructed by: MHL Support plc 4-6 Fellgate Court Froghall Street Newcastle under Lyme Staffordshire ST5 2UA

SUMMARY

The Applicant commenced two actions which claimed unpaid wages for two different periods of time. The issue was whether issue estoppel applied and there was an argument concerning perversity.


 


HIS HONOUR JUDGE PUGSLEY

1. In January 1989 the Appellant began work with the Respondent Company. On the 27th of June 2002 he sustained back injuries whilst at work. This case is concerned with the non payment of wages over a relatively short period of time. Although, not within the jurisdiction of the employment tribunal system it is relevant to note that there is an employer's liability case and that I have been told that, subject to an issue of contributory negligence, liability is not an issue. Although the issues raised in this case are not wholly academic the practical consequences of this case are likely to be somewhat limited in view of the personal injury litigation. I have no wish to trespass on the jurisdiction of the court trying the personal injury case and I am aware that the solicitors and counsel in this case are not, or may not be, instructed in the personal injury case. Subject to these caveats it does seem likely that the claimant will in the personal injury claim, subject to any reduction for contributory negligence, recover in his personal injury claim any sum that he fails to recover in his employment tribunal claim, and that he will have to give credit for any sum that he receives in his employment tribunal in his claim in the personal injuries case. I view with some concern the fact that the legal costs of the parties and the cost to the public purse in providing Tribunal time to litigate this matter may well be disproportionate to the monetary value of this claim.
2. The claimant has commenced two actions against his employer. In the first action before the E.T the claimant submitted a claim on the basis that he was had suffered a detriment and that he had not received unpaid wages. The circumstances of that are set out in the relevant paragraphs of the first decision.

"The Facts

7. The company employs approximately 30 people to apply specialist coatings to roofs. Mr Miller began working for the company in January 1989. During the material time, he was employed as a foreman/applicator.

8. On 27 June 2002, Mr Miller suffered an injury to his lower back, whilst engaged in a lifting manoeuvre. As a result of the injury, he was in considerable discomfort and went off sick.

9. On 28 June 2002, he notified his supervisor, Mr Burton, that hehad hurt his back at work and would be going to the doctor. Mr Burton told him that he would inform Mr Dean Cullum, the Contracts Manager.

10. Mr M Miller continued off work, in some pain. On 2 July 2002, Mr Cullum phoned him at home and enquired as to his health and how he got the injury. Mr Miller described the circumstances. Mr Cullum told him that the company would have no problem paying him while he was off recovering, if would sign a document stating that he got the injury outside working hours. Mr Cullum indicated that the injury was not recorded In the accident book. Mr Miller refused to do this.

11. Mr Miller was paid for the working days which he had off. He returned to work on 22 July 2002.

12. During the period between 2 August 2002 and 26 September 2002, there were a number of discussions between Mr Miller and Mr Burton about the former's back pain. Mr Miller told Mr Burton that his back was still sore but that he was taking painkillers which helped, and that it was better when he was working. Mr Burton went so far as to suggest a probable diagnosis namely sciatica.

13. Prior to: the accident on 27 June 2002, Mr Miller's job involved supervising as a foreman, preparing roofs by cleaning them, removing debris, priming, coating, snagging and clearing the site once work had been completed. Access to sites was by stairs; ladders, scaffolding and lifts. After the accident, he was able to perform these tasks, with the exception of removing any heavy debris. He was able to lift objects of moderate weight, and to drive himself to and from sites. His job was not of a heavy manual nature. It included supervising other employees.

14. After his accident, Mr Miller was involved, in working at heights with a harness and safety rail, off multilevel scaffold and off ladders. He worked much as he had worked before the accident, although he was now assisted by colleagues in carrying materials. He worked with various employees of the company, including Mr Burton at times. All of his duties were carried out well, and without incident. Some of his co-workers were aware of the discomfort which he felt but he continued with his normal duties. . Some of them apparently did not notice that he had such discomfort.

15. On 13 August 2002, a health, surveillance and consultation report was carried out by Mr Burton on behalf of the company. The form (A1/17: the prefix A1 will be omitted in future) asked whether the interviewee (Mr Miller) had various physical problems. He responded "No" all of the questions with one exception. That was the question whether he had any health problems in the last six months "relating to …injury due to lifting or back pain". He replied "Back injury due to lifting at St George's…" Mr Miller also responded "No to questions asking whether he had any comments relating to health and safety, or any agreed action to be taken between interviewer and interviewee.

16. Mr Millet was involved in various forms of medical treatment including seeing an orthopaedic surgeon. In late October, he told his GP that he wished to have private treatment, and an appointment was arranged for him on 5 November. There were phone calls between Mr Miller and. Mr Burton about this appointment, and the time off .work which it involved. On 8 November 2002, Mr Miller asked Mr Burton whether the company would help in paying his medical costs. Mr Burton replied that he did not think so, but would talk to Mr Cullum. Mr Cullum then rang Mr Miller and told him that the company would not help in paying medical expenses, as to do so would be to admit liability. Further, he suggested that Mr Miller should use the NHS. Mr Miller told him that he waiting list was too long, and asked for the refusal to be in writing. Mr Cullum responded that he should put in a written request, which would be answered.

17. On 10 November 2002, Mr Miller wrote to Mr Cullum asking for help in meeting his medical bill. He received a reply from the Company Secretary, Mr Mistry, on 28 November'2002 which stated in part:

"After due consideration, it is with regret that I have to inform you that the company is unable to provide any contribution towards the medical expenses that you. are incurring.

I must also inform you that the company will not pay any time taken off in connection with this injury from 1 November 2002."

18. On 11 February 2003, Mr Miller's solicitors wrote to the company claiming damages in connection with the accident on 27 June 2002. The letter (23-25) claimed that the company had failed to carry out any proper risk assessment of the manual handling operation which was alleged to be the basis of the accident. They stated that this was in breach of the relevant Health and Safety at Work Regulations. They further indicated that the claim was based upon a failure to take steps to reduce risk of injury, or to provide a safe system of working. The letter went on:

"As a result of the accident, our client is suffering with back pain emanating from his lumbar spine. He is still receiving treatment for two crushed vertebrae in his spine."

19. On 18 February'2003, Mr Mistry spoke to Mr Miller. He told him to leave the Chelsea Wharf site where he was working immediately, and to remain off site. He wrote a letter: to Mr Miller confirming the position (26) which reads in part as follows:

"I refer to our telephone conversation of today confirming our instruction for you to remain off site until we have received a letter from your doctor confirming that you are fit to perform the job for which you are employed by 5m (UK) Ltd.

The company requires this information following consultation with our insurance brokers. They have had sight of letter from your solicitor dated 11 February 2003 (which is to be forwarded to our insurance brokers). This confirmation is required due to the serious nature of the injury that you state you are suffering from following the alleged incident during the course of course of your employment with ourselves.

We will continue to pay you at your day rate for the rest of this week whilst you obtain the Ietter from your doctor: On receipt of this letter we will contact you with further instructions. We require the letter before we can allow you back on site and accordingly look forward to receiving it as soon as possible."

20. On 19 February '2003, Mr Miller obtained a certificate from his GP which he sent to the company. It stated:

"This is to certify that Laurence Miller ...is suffering from backache for investigation in May 2003 and is at present able to follow his occupation on light duty no lifting, pulling."

21. Since his return to work in July2002, Mr Miller had been carrying out duties which did not Involve any heavy lifting or pulling. As indicated above, he had carried out those duties satisfactorily.

22. On 24 February 2003, Mr Mistry wrote to Mr MilIer stating that the Certificate meant (30)-

"you are unable to perform your normal role for the company. Having discussed the matter with all relevant parties we have tried to find a role which would fit in with your current condition but are at present unable to offer you any suitable work... Until your medical condition improves or a suitable light duty position become available we are unable at present to utilise your skills. We continue to look for a suitable position and will contact you should one arise. In the meantime we wait to hear from you with regards to an improvement in your condition. I must also inform you that the company will be unable to pay you during this time."

23. On 3 March 2003, Mr Miller received a letter stating that as he had received a float of £1,000 for use against business expenses in August 2001 and he no longer drove a company vehicle, he should repay the float within 14 days of the date of the letter. Mr Miller rang Mr Mistry, and told him that he had a letter dated 1 August 2001 from him which stated that the £1,000 was repayable on termination of employment, and made no mention of a company vehicle.

24. On 21 March 2003, Mr Miller's then solicitors wrote to the company stating his intention to make complaints to the Employment Tribunal for discrimination under the Disability Discrimination Act, unlawful deduction of wages and breach of contract. The letter stated (32):

"Mr Miner has been suspended from work without pay because of his condition."

25. On 27 March 2003, the company received a report from Mr Robert Rawlings, a health and safety consultant. This stated in part (34):

"…I contacted the HSE Helpline for assistance. They were unable to give a specific definition of light duties, which in any event would be dependent upon the nature of any injury. It is, however, their view that the situation should be judged through the normal risk assessment process by the employer. If, in the employer's opinion suitable duties can be found for the operative to carry out, taking into account location access, nature of work and length of time, there is no reason why these cannot be done by the individual. However, bearing in mind the nature of this specific injury and of your work which would involve climbing ladders or at Ieast steps, lifting tools; equipment and materials, potentially slippery, uneven and sloping access you may well struggle to define work that this person can do. If you cannot create work he can carry out safely then you should not allow the individual back onto site"

26: The !letter makes no mention of the fact that Mr Miller had for a number of months carried out his normal duties as described above. No proper systematic risk assessment was carried out by the company in relation to Mr Miller's job.

27. On 14 April 2003, Mr Mistry wrote to Mr Miller's solicitors. This letter contained several inaccuracies, and statements which were misleading. It stated in part (35):

'Mr Miller attended a health surveillance check on the 11^th August 2002,

whereupon, he stated that he had suffered a back injury whilst moving material for a different contractor. He did not. however, express that this was causing him any problems nor that he required any assistance or lighter duties.

The first indication that we had that Mr Miller may be suffering from any form of back injury was by way of your letter dated 11^th February 2003. …With reference to your client's claim for pay during time taken off work to obtain treatment between November 2002 and February 2003, we would like to stress

That we had no knowledge of an ongoing back problem prior to February 2003'…"

28. In fact, the company had already been fully aware through Mr Cullum and Mr Burton of the back injury which Mr Miller had suffered, and of its effects upon him.

29. On 15 May 2003 Mr Miller submitted an Originating Application.

30. On 20 May 2003, the company gathered various statements from those who had been working with Mr Miller (41-46). Some of his co-workers said he suffered from discomfort. Some of them said there was no effect which they were aware of. No one indicated that he was unable to carry out his normal work.

31. On 3 July 2003, the company again demanded payment of Mr Miller's float of £1,000, notwithstanding the indication which he had given about the letter of August 2001. .At about this time, Mr Miller's statutory sick pay was stopped.

32. On13 August 2003, Mr Mistry requested a medical certificate as to Mr Miller's medical condition and fitness for work. By this time, Mr Miller was anxious to have his statutory sick pay restored. He also wanted a certificate for his mortgage protection insurers. He asked for two statutory sick pay forms (54 and 56) which are used to claim statutory sick pay. He sent one off to his employer, in the: hope .that this would restore his statutory sick pay. It stated that he should refrain from work for 12 weeks due to "lumbar disc displacement".

The case for the Respondent:'

33. 'Miss Monday questioned whether there was a protected disclosure. She asked whether the Applicant had a reasonable belief, and whether he was acting in good faith. The incident had been in June,2002, but the disclosure was not until 11 February 2003.

34. As to the question of detriment, she suggested that in the light of the letter from. the GP (28), Mr Miller was not treated less favourably than someone who had not made such a disclosure. Mr Mistry had spoken to the insurers, who had told him that a doctor must confirm that Mr Miller was fit. Further; advice was obtained from Mr Rawlings.

35. She also relied upon the Ietter from Mr Miller's former solicitors (32) stating that his suspension was due to his condition. This .was contrary to the present claim that was due to public interest disclosure. She distinguished London Borough of Harrow v. Knight [2003] IRLR 140, since the facts were so different.

36. As to the claim for unlawful deductions, she distinguished the case of Beveridge v KLM (UK) Ltd [2000) IRLR 766. In that case the doctor had said that the Applicant was fit for work. Here, he could only do light duties. In any event, the Applicant was not offering himself for work from 18 August 2003, and could not be entitled to payment.

The case for the Applicant

37. Mr Massarella said that a clear inference as to why the company had acted in the way complained of was to be drawn from the sequence of events. Mr Miller asked for money for treatment, and his sick pay was stopped. He submitted a claim for personal injury, and he was suspended. As far as the evidence was concerned. it was clear that the company through Mr Burton and Mr Cullum knew of Mr Miller's back problem. Mr Burton, in particular was aware of the details of this due to his frequent conversations with Mr Miller. Nevertheless, it was crucial that Mr Miller had been able to work without any of his co-workers or supervisors complaining about the standard of his work. The company had already adjusted to the effects of Mr Miller's injury. If they had been concerned about Mr Miller's health, then they would have carried out a proper risk assessment. The only investigation which they had carried out was in May 2003, when employees were asked for letters (41-46). The nature of their replies showed that this was a situation which required a risk assessment. In fact, this was precisely what Mr Rawlings suggested in March 2003. The company had not done it.

The Law:-

36. Section 43B of the Employment Rights Act 1996 deals with disclosures qualifying for protection. It reads in part:

"43B. (1) In this Part, a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following –

…

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

…

(d) that the health or safety of any individual has been, is being or is likely to be endangered…"

39. Section 47B of the.1'996 Act reads in part:

"47B. (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.."

40. The right not to suffer unauthorised deductions from wages is dealt with in section 13 of the 1998 Act which reads in part as follows:

"13 (1) An employer shall not make a deduction from wages of worker employed by him unless-

(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this section 'relevant provision', in relation to a worker's contract, means a provision of the contract comprised-

(a) In one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b) In one or more terms of the contract (whether express or implied and, if express: whether oral or in writing) the existence and effect, or combined effect of which in relation to the worker the employer has notified to the worker in writing on such an occasion."

Conclusions

41. The Tribunal concluded unanimously that the letter sent on Mr Miller's behalf on 11 February 2003 was a protected disclosure. Mr Miller had reasonable belief in the truth of the disclosure, and he acted in good faith It was in no sense malicious or frivolous. The delay after the accident was due to the fact that it was a big step to make such allegations to an employer, particularly in a small company. The company decided to suspend him "without pay on the ground that he had made the disclosure. Those who made the decision to dismiss, advised by Mr Mistry and Mr Cullum were influenced by the disclosure which he had made.

42. In coming to this conclusion, we bore in mind that shortly after Mr Miller asked for money to help with his medical treatment; the company stopped his sick pay in order to avoid any inference of liability in a potential personal injury claim. Then, shortly after Mr Miller submitted a personal injury claim, he was suspended without pay. If the company was genuinely concerned about the extent of his injury and its implications, as they claimed, they would have done a proper risk assessment, and come to a reasoned judgment on that basis as to whether his condition enabled him to continue with the work.

43. It was cleat that Mr Miller had suffered pain and discomfort after the accident. Further, the company (through Mr Burton and Mr Cullum) was aware of the essential features of that pain and discomfort. Nonetheless, Mr Miller had carried on with his usual duties (other than heavy lifting) with the full knowledge of .the company. .The crucial new feature to the situation was that Mr Miller had given notice that he wished to make a personal injury claim. It was that matter which influenced the company to suspend him without pay.

44. As to the claim for unauthorised deduction from wages, there was no written contract and no express contractual term, either written or oral, as to sick pay. Mr Miller was entitled at common law to be paid unless there was a specific contractual provision to the contrary. In circumstances where he was fit and willing to work. There was no such contractual provision here - no express or implied term. Since Mr Miller offered his services, he was entitled to be paid. However, from 18 August 2003, Mr Miller was no longer offering himself for work (see 54 and 55). The unauthorised deductions from wages were, therefore only made until that date.

45. It follows that the claims for detriment on the ground of public interest disclosure and unauthorised deduction from wages succeed."

3. The second Tribunal decision was a second application for unpaid wages. It reached a different conclusion as is apparent from the terms of its decision which is set out in the relevant paragraphs of its second decision.

"REASONS

The Issues:

1. By a Claim presented on 1 December 2004, the Claimant complained of unlawful deductions between 10 November 2003 and 6 September 2004, and non-payment of statutory sick pay.

2. The Respondent defended the claim, suggesting that the Claimant had not been fit for work and that he had not been paid until medical evidence and a risk assessment could be obtained in order to define what his doctor had meant by "light ,duties".

3. The Claimant had made a previous claim against his employer which was heard by a Tribunal on 12 November 2003. ,That Tribunal had found that the Claimant had been subjected to a detriment on the grounds that he made a public interest disclosure in that he was suspended from work from 24 February 2003 after his Solicitors had written to the Respondent claiming damages in connection with an accident on 27 June 2002. That Solicitors' letter was found to have been a protected disclosure. The Tribunal also upheld the Claimant's complaint of unlawful deductions from wages in respect of the period 24 February 2003 to 18 August 2003. On 18 August 2003, the Claimant had submitted a medical certificate from his doctor and the Tribunal found that' from that date he was no longer offering himself for work.

4. At a remedy hearing on 30 January '2004, it was noted that the parties had agreed the amounts relating to the unauthorised deductions. The remedy hearing therefore dealt with the question of an award for injury to feelings.

5. Given that background, at the start of this hearing, the parties were able to agree, the issues to be determined as follows :

(i) Is statutory sick pay due for the 'period 18 August 200~0 10 November 2003

(ii) Was the Claimant fit for work between 10 November 2003 arid 6 September 2004 (the date that he actually returned to work)?

(iii) When was the Respondent in possession of sufficient 'medical evidence to allow the Claimant to return to work?

(iv) When did the Respondent know that the Claimant could return to work safely?

(v} In all the circumstances, was there an unlawful deduction from wages between 10 November 2003 and 6 September 2004?

Documents and Evidence:

6. There was an agreed' bundle of documents (C1) and witness statements from the two witnesses who gave evidence.

7. 1 heard evidence from the Claimant himself, Mr Laurence Miller, and on behalf of the Respondent from the Company Secretary, Mr Bankim Mistry.

Findings of Fact:

8. Following on from the history of the matter set but by the Tribunal in the previous judgments_(decisions) I found that the Claimant submitted a medical certificate to the Respondent dated 19 February 2003 which said that he was suffering from backache which was to be investigated in May 2003 and that he was able to follow his occupation "on light duty no lifting, pulling". As the previous Tribuna1 found, shortly after that he was suspended without pay by the Respondent.

9. Around 18 August 2003, the Claimant submitted a medical certificate from his doctor (p.89). The paragraphs relating to refraining from work and not refraining from work were not deleted, but the doctor had filled in "12 weeks and lumbar disc displacement" and I find that the medical certificate was to all intents and purposes a certificate excusing the Claimant from work because of his condition. That certificate therefore expired on 10 November 2003.

10. At the expiry of that certificate, nothing was heard from the Claimant by the Respondent. Mr Mistry therefore wrote on 28 November 2003 (p.172) asking for an update. The Claimant sent a medical certificate dated 5 December 2003 by letter dated 9 December. That certificate said that he was suffering from prolapsed lumbar disc and also said "he is at 'present fit for working light duties not for heavy lifting". The reserved decision of the Tribunal in respect of the first claim was promulgated on 8 December 2003. It must have been at around this time that it was received by the Respondent. There was some criticism in that decision of the Respondent, and reference was made to the need for a proper risk assessment. It was clear to the Tribunal that after his accident in June 2002, the Claimant had returned to work in July 2002 and had carried out his normal duties save for any heavy lifting or pulling until he was suspended on 24 February 2003.

11. Mr Mistry Wrote to the Claimant on 19 December (p.176) asking his consent to refer him to a doctor appointed by the Respondent. The Claimant agreed to this and he was referred to Occupational Health Services at St Bartholomew's Hospital in London.

12. On 24 February 2004, Dr Assufi, the Occupational Health .Consultant; wrote to the Respondent (p.179-180). He said: ~

"I am happy for him to return to-work provided he does not perform heavy lifting and pushing heavy machinery."

He answered some of the questions posed by the Respondent, although to others he .said that he was awaiting a report from the Claimant's own specialist at Newham General Hospital.

13. .It took some time to obtain that report. I find that the delay was not the fault of the Respondent or the Claimant at this stage. On 29 March 2004 (p.181) Dr Assufi wrote again to the Respondent to say that he had received a report from the Claimant's specialist, that a scan was to take place and' "at the present there is no change of my advice of 24 February 2004, i.e. he should continue working avoiding heavy lifting and pushing heavy machinery for the foreseeable future".

14. Dr Assufi had said he would write again when he had the further information, but. unfortunately, there was again a delay. It appears that that delay was caused by Dr Assufi making arrangements to leave his post at St Bartholomew's Hospital. I accept Mr Mistry's evidence that he made numerous telephone calls to speed things along and that on 29 -April ip.182). he received -an assurance from the Business Manager of the Occupational Health Service at the hospital that he was also putting .pressure on Dr Assufi to respond.

15: Dr Assufi wrote his third letter on- 30 April (p.183). He said:

"I advised that Mr Miller should not perform heavy lifting. (maximum 10 kilograms). He is able to push a petrol washer and unable to push the petrol .scrubbing machine. He is able to use the pressure roller and handles. I hope that this will be helpful."

16: Now that' he was in possession. of that information; Mr Mistry wrote to the Claimant enclosing the report and arranging a meeting on 24 May 2004. I find that at that meeting it was agreed that a risk assessment would be carried out to enable the Respondent to see what right duties the Claimant could undertake.

17. The risk assessment Was carried on 17 June 2004, the report is at pages 185-187 of the bundle. It was sent to the Claimant on 30 June for him to countersign a declaration that read:

"I acknowledge receipt of a copy of this assessment and manual handling leaflet. I agree to abide by the control measures for which I am responsible and undertake not to carry out operations which are prohibited".

In his covering letter {p.188}, Mr Mistry asked the Claimantl0 return the signed risk assessment together with a medical certificate from his doctor confirming his availability for work, following which he would be allowed back on site.

18 On 14 July 2004; the Claimant had telephoned Mr Mistry to say that he had been advised not to sign the risk assessment. Mr Mistry asked for the reasons in writing. The Claimant provided these on 2 August (p.190). He had two reasons for not signing the risk assessment. Firstly, he considered that it was not necessary for him to sign any documents in order to' resume work. He said that he had always provided the Respondent with medical certificates which stated that he was fit for work on a light duties basis. Secondly, he did not think he should sign a report by an Occupational Health Officer, when it did not contain an orthopaedic specialists report. With that letter, the Claimant enclosed the medical certificate dated 25 June 2004 which stated that he was able to work "light duties, no heavy lifting, as per recommendation of the Occupational Therapist".

19. Mr Mistry wrote to the C1aimant on 5 August (p.192) asking him to sign to say that he had received and understood the risk assessment and to say whether or not he felt that it required amending..

20. On 22 August, the Claimant replied (p.193). He confirmed that he had received and understood the risk assessment and did not feel that it was necessary for him to correct or comment on it. The Claimant wrote a second letter on that date claiming that' there had been an unlawful, deduction from wages between 10 November until the date he proposed to return to work which 'he suggested should be 6 September 2004. He also considered that he was owed 12 weeks' statutory sick pay in respect of the period between 18 August to 9 November 2003.

21. Mr Mistry replied on 31 August (p.196) setting .out the company's position. The date of return to work was agreed as. 6 September 2004.

22. With regard to statutory sick pay, I was referred to page 204 of the bundle which sets out the statutory sick pay that should .have been .paid to the Claimant and the statutory sick pay that was in fact paid to him because of a computer problem. The Respondent suggested that the Claimant had been overpaid by some £910.35. The amount of statutory sick pay paid to the Claimant during his sick leave/suspension had, by agreement, been deducted from the compensation owed to the Claimant in respect of his successful claim of unlawful deduction from wages. The Tribunal in the previous case had been- presented with an agreed figure, without details.

'23. I am satisfied that page 204 sets out an accurate account of the payments made to the Claimant. He was paid statutory sick pay for March, April, May and June 2003. The payments then stopped for July, August, September and October. He was then paid statutory sick pay for November and December. 2003. The January 2004 payment was not made. He was paid statutory sick pay for February 2004, April 2004, June .2004 and August 2004. I accept the Respondent's evidence that the payments were erratic because of a computer problem that has never been fully explained to them. I also note that page 204 does not take into account the agreement reached between the parties in respect of the remedy flowing from the previous Tribunal's findings.

Submissions:

24. Submissions were made on 'behalf of the Respondent by Mr Cameron and on behalf of the Claimant by Mr Gullick. Reference was made to the cases of J C Smith v Cameron & Campbell Ltd [1974] IRLR 202; Beveridge v KLM (UK) Ltd [2000] IRLR 765 and Miles v Wakefield Metropolitan District Council [1987] ICR 369.

The relevant law:

25. Section 13 of the Employment Rights Act 1996 provides that an employer shall not make a deduction from wages of a worker employed by him unless the deduction is required or, authorised to be made by virtue of a statutory provision, or a relevant provision of the worker's contract, or the worker has given written authority for the deduction. '

Conclusions:

Statutory sick pay

26 As the statutory sick pay paid 'to the Claimant up to 18 August 2003 was deducted from the compensation agreed by the parties in respect of the previous Tribunal decision, I concluded that the Claimant is entitled to a payment of 12 weeks statutory sick pay in respect of his certificated sick leave between 18 August 2003 and 10 November 2003. To do otherwise would mean that he has not received the appropriate amount of statutory sick pay. The statutory sick pay already paid was deducted from the unauthorised deduction award, which related to the Claimant's wages between 24 February 2003 and 18 August 2003; it cannot then be withheld for a further period. Deducting the statutory sick pay paid for that period from the wages owed to the Claimant in effect means that the statutory sick pay already paid was taken to be part payment of tile wages that were owed to the Claimant for that period: If, as in this case, the Claimant then undertakes a further period of sick leave, he must be entitled to statutory sick pay so long as he has qualified for such a payment under the statutory sick pay rules. There was no question in this case that he did not so qualify. I am, therefore, satisfied that the Claimant is entitled to a payment equivalent to statutory sick pay for the 12-week period between 18 August and 10 November 2003, subject to offsetting any overpayment of SSP caused by the computer fault, if this was not taken into account when the parties agreed remedy on the last occasion.

"Was the Claimant fit for work between 10 November 2003 and 6 September 2004?"

27. I concluded that he was not fit for work. He provided a medical certificate to show that he was fit for light duties and, having done so, I am satisfied that it was incumbent upon the Respondent to obtain medical advice and undertake a risk assessment in order to determine what light duties could be performed by the Claimant. I have considered the argument that, as the Claimant returned to work after his accident and informally, although with the knowledge of the Respondent undertook "light duties" until he was suspended. I note that Mr Mistry did not witness any of the duties undertaken by the Claimant and he cannot therefore say with any weight that what the Claimant did before February 2003 was or was not similar to what he is doing now. The Claimant, with some force, says that what he is doing now is exactly the same as he was doing before February 2003 and after his accident. However, the fact remains that the Claimant produced a medical certificate to say that he should undertake light duties, and I have concluded that this meant that there was a restriction on the type of duties that he should undertake. In ,those circumstances, it must be right for an employer to undertake proper investigations into the situation before allowing a worker to return to work.

When was the Respondent in possession of sufficient medical evidence to allow the Claimant to return to work?

28. I have concluded that the Respondent 'took reasonable' steps to obtain proper medical evidence in respect of the Claimant's medical condition. There were delays, which were unfortunate, but were not the fault of either the Respondent or the Claimant. On the correspondence placed before me, I am satisfied that the Respondent was in possession of sufficient medical evidence to allow the Claimant to return to work when they received Dr Assufi's letter of 30 April 2004 which actually specified the maximum weights that the Claimant could lift and the specific equipment that he could and could not use.

When did the Respondent know that the Claimant could return to work safe?

29. I am satisfied that the Respondent Was in possession of this ,information when they received the report from the Occupational' Health Adviser who carried out the risk assessment. That assessment was forwarded to the Claimant on 30 June 2004. Had he signed and returned it, I am satisfied that he would have been allowed back to work immediately. The delay after that point was as a result of the Claimant seeking his own advice and then refusing to sign the risk assessment.

30. There is no contract of employment in writing in this case.' There is :no dispute that the Respondent does not pay any contractual sick pay. Where appropriate, they pay statutory sick pay only. Once a worker's right to statutory sick pay has expired, therefore, no further payments are due to him from the Respondent.

31 I have concluded that all the time the Claimant produced medical certificates that said he was fit only for light duties, he was not offering his services to the Respondent to undertake the job that he was employed to do. He was offering to carry out "light duties" and in those circumstances it was correct for the Respondent to investigate, by means of a medical report and a risk assessment, what constituted light duties. Until that question was answered, I have concluded that the Claimant remained on sick leave, because he was not fit enough to carry out his normal duties, and he was entitled therefore to be paid statutory sick pay until his entitlement to that was exhausted. There was, however, no unlawful deduction in respect of his wages."

Issue Estoppel

4. Before me the Appellant makes the submission that issue estoppel arises where the issues in the current proceedings are identical with those that were determined, and were necessary for the decision, in the previous proceedings Arnold v Westminster Bank PLC 1991 2 AC 93 at 904. This principle applies to Employment Tribunals. It is submitted that the First Tribunal found that the Appellant was offering his services to do his job by submitting in the terms which he did and therefore the decision to withhold his wages was an unlawful deduction. This was, it is contended, a decision necessary to its decision and was not appealed. In that the terms upon which the Appellant was offering his services namely to do light work was in identical terms then the issue had been determined by the first tribunal and the second tribunal was under the principle of issue estoppel precluded from reaching a different view. The doctrine applies, it is submitted, even if the first decision was wrong: see 0' Laoire v Jackel International (no 2) 191 ICR 718 at 727 -729.
5. The Respondent's submission was put in clear terms; issue estoppel only arises when {he same issue was re-litigated and that was not the case in this case. It was not that the two periods were different but that on the Tribunal's findings the circumstances were different. In the first case the Claimant had been working prior to being suspended from work; in the. second case the claimant had submitted a certificate that he was medically unfit and a risk assessment was being carried out to ascertain the nature of the work the claimant was capable of performing. The factual context in which the Tribunal made its the decision was different. Further the Respondent points out that this issue was not raised before the Tribunal below and in effect what the Appellant is doing is to raise a new matter of law not argued below and that it is not sufficient to say, rather lamely, that is an issue which goes to jurisdiction. This was a case in which Mr Gullick appeared in the Tribunal below and it is unclear that this matter was raised before the Second Tribunal although very clearly the decision of the First Tribunal was before the Second Tribunal. I have not heard any other than skeletal argument about this matter. Having considered the matter I do not feel I have all the information before me as to whether this matter was raised and in particular I would wish the Chairman's comments on this matter as well as to be referred to authorities dealing with this issue. I wish to save time and money and I therefore adopt the following course. I express no definitive view on this aspect of the appeal and proceed on the basis that the Appellant can raise the issue. If the matter ceases to be academic. 1 would look with sympathy on any application for review by the Respondent to consider the matter.
6. In the first decision of the Employment Tribunal at Paragraph 44 its conclusions were that there was no contractual term, either written or oral, as to sick pay. Mr Miller was entitled at common law to be paid unless there was a specific contractual provision to the contrary, in circumstances in where he was fit and willing to work. The Tribunal however limited his claim to the 18th of August 2003 when the Tribunal determined that he was not offering himself for work.. The Tribunal had made the finding in Paragraph 32 that Mr Miller had sent a sick note that he should refrain from work for 12 weeks due to lumbar displacement. The subsequent history is set out in the decision of the second tribunal and the Chairman concluded that that the Applicant was not fit for work in that he provided a medical certificate to show that he was fit for light duties and, it was incumbent upon the Respondent to obtain medical advice and to determine what light duties could be performed. It is to be noted that the submission made upon the Applicant's behalf in the first case was that the company should have carried out a risk assessment and that submission was accepted by the Employment Tribunal. Having read the two decisions they were concerned with different issues and I do not accept that they were dealing with the same factual matrix and that there very different issues before the second employment tribunal Issue estoppel does not apply.

Perversity

7. The Appellant's second contention is that the decision was perverse and that the Employment Tribunal failed to follow Beveridge v KLM(UK) Ltd (2000) IRLR 765. The facts of Beveridge's case were that the Mrs Beveridge, who had been from work following a lengthy period of sickness, informed her employer that was fit to return to work and produced a note from her doctor to that effect. Her employers declined to take her back until their own medical adviser had certified her as being fit for work. This led to a delay of some 6 weeks before she returned. The Employment Tribunal chairman dismissed her claim on the basis that there was no express term in her contract of employment which required the employers to pay wages to her after her contractual and statutory sick pay had run out and whilst they waited confirmation from their medical adviser. The Employment Appeal Tribunal reversed this decision in what was a succinct judgement which is set out, as much as summarised, in the head note. In effect the judgement was that an employee who offers her services to her employer is entitled, at common law, to be paid unless a specific condition of the contract regulates otherwise. It is for the employer to show that contract entitles them to withhold payment. In the present case there was no such term in the applicant's contract. The applicant could do no more, in respect of her side of the mutual contract, than to proffer her services against a background of a certificate of good health.
8. It is a somewhat obvious observation that employment protection legislation has led employers to restrict the number of employees to the minimum. There are often other commercial reasons for employers contracting out certain functions such as security, cleaning and maintenance and in some cases part of the production process, to contractors. The experience of the courts in personal injury litigation is that there is a paucity of light work on which those who have been injured at work can be re-deployed compared with the position of a generation ago. Although in practice the basis of personal injury is in tort it is trite law that one of the implied contractual terms of employment is that an employer will provide the employer with a safe working environment and that an employer owes a duty of care to an employee.
9. The facts of this case are in stark contrast to those of Beveridge's case in that in that case the employee offered her services to carry out all her work whereas in this case the employee was only offering to carry out part of his work. For the Respondent Mr Taylor relies on the case of Miles v Wakefield MDC 1987 ICR 382 as authority for the proposition that there is no breach of Section 13 if the employee is merely offering to perform some part or variation of his contract that the Respondent was not obliged to accept. The facts of Miles were very different in that they arose out of industrial action. Mr Miles was the superintendent registrar of births, deaths and marriages. His normal working week was a 37 hour week which included three hours on a Saturday morning which was the most popular period for weddings. The trade union instructed its members to taking industrial action which involved refusing to conduct weddings on the Saturday morning. Mr Miles complied with this instruction but remained willing to attend the office on a Saturday morning and do other work. The local authority made it clear that whilst made it clear that if registration officers were not prepared to do the full range of their duties on Saturdays they were not required to attend at all and would not be paid for the Saturday morning. The council deducted pay referable to the non attendance on Saturday mornings. An issue in that case was that the Plaintiff was not an employee whose relationships were governed by a contract of employment but the holder of an office. The speeches in the House of Lords make it clear that for the purpose of the appeal there was no logical distinction between an employee and an office holder. The overall decision was to the effect that an employee's right to remuneration depended on his doing or being willing to do the work that he was employed to do and if he declined to do that work the employer need not pay him.
10. Miles's case arises in a different context of an industrial dispute but the central thrust of the decision is that an employee cannot dictate to his employer what part of the contract he will perform and this does have a wider application beyond the findings of that particular claim. Underling the Appellant's contention is the implicit premise, which never quite rises to an explicit submission, that the employer has to find an employee a light job. Although as a matter of reality employers may well create a light. job which is within an injured employee's capacity I find it an audacious claim that an employee has the right to compel an employer to create a light job for him without giving the employer time to make further enquiries as to what is appropriate light work in the light of medical advice and a risk assessment.
11. In a clear and well reasoned decision the Employment Tribunal Chairman gave her reasons as to why she reached the decision that the employee's case for unpaid wages failed. The issues before the Chairman at the second Tribunal hearing were materially different. To have stigmatised the employer for failing to carry out the enquiries as to what work the employee could do in the light of the first tribunal's criticisms for not carrying out a risk assessment would have been capricious.
12. I dismiss the Appellant's appeal.