Case - Beveridge v. KLM (UK) Ltd

[2000] IRLR 765, Employment Appeal Tribunal - Melanie Tether

An employee who offered his services to his employer was entitled to be paid unless his contract of employment made express provision to the contrary. The appellant was thus entitled to wages for period after her doctor declared her fit for work and before company doctor had agreed.

The appellant employee ('B') appealed against the decision of a lone employment tribunal chairman dismissing her claim for unlawful deduction of wages in respect of her employment with the respondent employer ('KLM'). B, who was a long standing employee of KLM, was absent from work on sick leave for a considerable period of time and had exhausted her entitlement to sick pay. Her doctor, who had previously supported her absences from work, indicated that she would be fit to return to work on 1 February 1999. KLM declined to take her back immediately because it required its own doctor to verify B's fitness for work. Consequently B was willing to work for six weeks but was unable to do so. After six weeks KLM's doctor allowed her to return to work. The employment tribunal chairman found that there was no term in B's contract of employment which allowed her to claim wages for the six-week period. B submitted in her appeal that at common law an employee had a contractual right to payment of wages when she presented herself for work, unless the contract of employment expressly denied that right for a particular reason. B therefore submitted that KLM bore a burden to prove that they had a right not to pay her wages for the six week period. B further submitted that, properly understood, the term in her contract which related to medical suspension meant that she had in effect been suspended by KLM on medical grounds and was entitled to payment in the terms set out in that provision. KLM submitted in reply that it had been entitled to investigate B's health and that B should be treated, in respect of the six-week period, as if she was still unfit for work.

HELD: (1) Whilst all contracts of employment were governed essentially by their express terms, the position at common law was that an employee who offered her services to her employer was entitled to be paid unless the contract of employment made express provision to the contrary (see O'Grady v M Saper Ltd (1940) 2 KB 469, Mears v Safecar Security Ltd (1981) ICR 409 and Miller v Hamworthy Engineering Ltd (1986) ICR 846). (2) In the present case B could do no more, in respect of her side of the contract, than proffer herself as fit for work against a background of a certificate of good health. There being no term in B's contract of employment with KLM entitling KLM to withold payment, the employment tribunal chairman had misdirected himself in law. (3) The EAT declined to make findings as to whether the part of B's contract of employment which covered medical suspension applied in the present case.

Appeal allowed. Case remitted back to the employment tribunal for a remedies hearing.

Melanie Tether instructed by Pattinson & Brewer for the appellant.
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