Appeal No.	 EAT/265/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 November 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MR I EZEKIEL
MR D A C LAMBERT

HM CUSTOMS AND EXCISE	APPELLANT

MR D D SAWDON	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR SALZEDO
(of Counsel)
Instructed By:
HM Customs and Excise
Solicitor’s Office
New Kings Beam House
22 Upper Ground
London SE1 9PJ	

	MR JUSTICE LINDSAY (PRESIDENT):

1	We have before us as a preliminary hearing the appeal of the Customs and Excise in the matter Sawdon against the Customs and Excise.  This part of the case is ex parte and therefore we have heard only Mr Salzedo, representing the Customs and Excise.

2	On 26 May 1999 Mr Sawdon lodged an IT1 claiming breach of contract.  His IT1 said:

“My complaint is that the Commissioners of Customs & Excise refuse to extend the benefits of Section 11 of the Principal Civil Service Pension scheme to me.  These are benefits which may be payable if you are injured on duty.  Similarly, with refusing to take action as directed in the Home Civil Service (Third party injury) Regulations 1983.”

A little later, in his IT1, he says that he had been injured in an accident:

“The DSS adjudication Officer on the 25th March 1999 ruled that my accident of 5th January 1999 was an industrial accident.  I was examined by a medical adjudicating authority of the DSS on 4th May 1999 who decided that I was 20% disabled, but would be re-examined on 19th October 1999.  I contend that I am entitled to an advance of salary from the Commissioners of Customs and Excise under the above provisions for the loss of income that I am presently suffering.  The loss of income is part of my third party claim, and I have given an undertaking to the Commissioners in the approved form that in the event of my third party claim succeeding that I will repay to them such advances that they have made.”

And he says that the effect of the actions of which he is complaining was to withdraw allowances from him on 6 March 1999.  He said:

“I am presently on medically certified sick absence since I was involved in a road traffic accident whilst on duty on 5th January 1999.  Before this I was a Senior Customs Officer employed at Gatwick Airport.”

That is the nature of the claim, broadly speaking, that Mr Sawdon was raising in his IT1.  

3	On 23 June 1999 there is a letter from the Commissioners of Customs and Excise which, slightly oddly, was treated as an IT3 by the Employment Tribunal.

4	On 7 July the IT1 was amended, although it is far from clear to precisely what form it was amended.

5	On 17 August 1999 there was a hearing at Brighton on a preliminary point.

6	On 2 September 1999 the decision of the Tribunal on the preliminary point was sent to the parties.  Earlier this morning I have extended time for the lodging of a Notice of Appeal in relation to that preliminary point and so there is an effective appeal as to the preliminary point which is in relation to the true construction of section 27 of the Employment Rights Act 1996 in relation to the Home Civil Service Third Party Injury Regulations 1983 and in, particular, paragraph 1.

7	On 4 October 1999 there was a hearing at Brighton in relation to the substantive part of the case and on 13 October the decision was sent to the parties.  It was a majority decision and the majority declared that “from 24 August 1999 the Respondent has made unlawful deductions from the Applicant’s wages of the amount of the AAA allowance and orders the Respondent to pay the Applicant the amount wrongly deducted”.

8	On 22 November there was a Notice of Appeal and on 13 November a Skeleton Argument was received from the Commissioners of Customs and Excise.  

9	At the moment we have extracts only from the Customs and Excise papers.  It is by no means easy to follow the references, nor does one have the grasp for the meaning of expressions or for a true construction which one is likely to have where a whole document, including any definition clauses, is put in front of one.  

10	We think it right that there should be a full hearing, as we shall explain, but care needs to be given to explain to the EAT at the full hearing, at any rate in outline and in plain terms, the types of payment that are made in such cases; why they are paid, to whom are they paid, how long are they paid and upon what conditions they are paid.  The picture that emerges so far is far from clear.

11	The Employment Tribunal majority determined the matter, it seems, chiefly by reference to paragraph 2.44 of Departmental Instructions which are headed “2.44 What benefits would I be entitled to if I am injured on duty?”.  In relation to that Mr Salzedo in his Skeleton Argument argues that the result of that paragraph 2.44 is not intended to define the benefits available in the second six months under ordinary sick pay arrangements, but rather is that it simply notes that there may be an additional first six month period available under the PCSPS from which the Applicant has in this case benefited in full.  He urges that 2.44 is not to be read in isolation but has to be read in conjunction with 2.42.  

12	Paragraph 2.44 headed “What benefits would I be entitled to if I am injured on duty?”, says:

“Benefits payable vary according to the severity of the injury or incident.
Listed below are the main benefits:
•	Extension of paid sick leave
Provided that there is reasonable prospect of your recovery and return to duty, you will be allowed time off from work on full and reduced pay if you are medically incapacitated.  Normally you are allowed 6 months on full pay in any period of 12 months followed by a period of half pay, subject to an overriding maximum of 12 months sick absence in any period of 4 years or less.  If your sick absence is due to an injury or disease which qualifies you to be considered under section 11 of the PCSPS the maximum period of sick absence on full pay is increased by 6 months.”

Paragraph 2.42 says:

“Section 11 of the Principal Civil Service Pension scheme covers certain benefits.  This is a brief guide to the benefits that may be payable to you or your family if you are injured or killed on duty.
The benefits do, however, depend very much on particular circumstances of the individual and of accidents/incidents in which they are involved.”

13	Taking 2.42 and 2.44 together, Mr Salzedo argues, one sees that 2.44 is only a loose and general introduction and cannot be relied upon to override more specific divisions which, he says, is the wrong step that the Tribunal took here.  One can see that, he says, from their paragraph 13 where they say:

“This provision overrides the ‘normal’ provision and to a qualifying person like Mr Sawdon provides ‘full pay’ for 12 months before the ½ pay provision commences.  They interpret ‘full pay’ to mean basic pay plus any allowances so as to restore the person to the position he would have been in had he not been injured and performed his duties.”

14	It may be an over-simplification to say that the situation is such that half-pay is not 50% of full pay in the particular regulatory scheme which is outlined.  We do not feel able to say that the argument, as touched on by Mr Salzedo in his Skeleton Argument, is not reasonably arguable and it is quite plain that it is likely to affect literally hundreds or possibly thousands of Crown employees.  It has repercussions, in other words, well beyond the parties before the Tribunal in this case.

15	In the circumstances, although speaking for myself, I do not at all feel that I have got a truly adequate sense of what the Regulations are intended to mean, we do think it is right that there should be a full hearing.  Care is to be given to the selection of material papers, so that the EAT has in front of it full information, including full parts of documents which are to be exhibited and yet, equally, that the EAT should not be overwhelmed by papers to which no reference will need to be made.

16	We will expect the Customs and Excise, in particular, to be careful to ensure that the EAT has enough paper in front of it to come to a true construction without being, as I say, overwhelmed with irrelevant paper.  An explanation of the system in plain words would, no doubt, assist.  

17	There should be an exchange of documents to be relied on at the full hearing between the parties not less than 21 days before the date of the hearing and the papers exchanged must be sent to the Employment Appeal Tribunal not less than 21 days before the hearing.  Skeleton Arguments are to be exchanged between the parties and sent to the EAT not less than 12 days before the date fixed for the hearing and I will ask Mr Salzedo and, because Mr Sawdon is here, Mr Sawdon also, as to whether there are any further directions which are likely to be needed.