Brown v Chief Adjudication Officer

For statutory sick pay, a contractual deeming provision must be applied according to its purpose and the relationship to which it applies. Where an employee has been continuously employed for at least three months under a contract for a term certain of one month or less, section 49(4) of the Employment Protection (Consolidation) Act 1978 gives the contract effect as if it were for an indefinite period. That fiction applies when determining the period of entitlement under section 153 of the Social Security Contributions and Benefits Act 1992, unless its application would produce an unjust, anomalous or absurd result. Accordingly, where the required notice has not been given, the contract does not end merely because the employee was engaged on a day-to-day basis.

The claimant worked continuously for more than nine months, for at least 24 hours each week, under an arrangement found to be day-to-day employment. After suffering an injury at work, she was incapable of working from 21 June to 9 December 1992 and claimed statutory sick pay.

The claim was rejected by her employers, the adjudication officer and the social security appeal tribunal. A social security commissioner upheld the refusal, reasoning that the day-to-day contract had ended on the last day worked. The appeal concerned whether section 49(4) of the Employment Protection (Consolidation) Act 1978 altered the contract for the purpose of determining a period of entitlement under section 153 of the Social Security Contributions and Benefits Act 1992.

1. Appeal allowed. The contract was treated as a contract for an indefinite period by virtue of section 49(4) of the Employment Protection (Consolidation) Act 1978.
2. Section 49(4) applied because the claimant had been continuously employed for more than three months and her contract was for a term certain of one day. The contract therefore had effect as if it were for an indefinite period.
3. A deeming provision must be applied by identifying the purposes for which, and the persons between whom, the statutory fiction is to operate. Part IV of the 1978 Act was intended to apply generally between employer and employee. It therefore conferred the rights and obligations that would arise if the contract had in reality been made on the deemed basis, unless that application produced an unjust, anomalous or absurd result.
4. The reference in section 153(1) of the Social Security Contributions and Benefits Act 1992 to a period of entitlement as between employee and employer required the section 49(4) fiction to be applied in determining that period. Applying it to statutory sick pay produced no unjust, anomalous or absurd result.
5. The deemed indefinite contract was terminable by at least one week’s notice under section 49(1)(a). No notice had been given. The contract therefore had not ended when the claimant became incapable of work, and the period of entitlement ran from 21 June to 9 December 1992 under section 153(2)(a).
6. The appeal was allowed with costs and remitted to the social security appeal tribunal to proceed in accordance with the judgments.

• Court of Appeal: Allowed the appeal from the social security commissioner, with costs, and remitted the matter to the social security appeal tribunal.
• Social security commissioner: Refused the claim for statutory sick pay, holding that the day-to-day contract had ended on the last day worked.
• Social security appeal tribunal: Rejected the claimant’s claim before the commissioner’s decision.