O'Brien v London Borough Of Haringey & Anor (Contract of Employment : Sick pay and holiday pay)

Entitlement to contractual sick pay for an infectious illness contracted “in the course of” employment depends on the proper construction of the employment agreement, not on vicarious-liability principles.

Where one clause defines that expression to include extra-curricular or voluntary activity connected with the school, the same expression in a related sick-pay clause should ordinarily bear that meaning. An approved activity connected with the school may fall within the provision even if it is voluntary, outside normal duties, initiated by the teacher, and undertaken during a holiday.

The claimant, a primary-school teacher, visited a school in Gambia during a half-term holiday. With the acting headteacher’s permission, she exchanged materials as part of a proposed link between the two schools. She contracted an infectious illness through contact with children at the Gambian school.

Her contract incorporated the Burgundy Book. She claimed full pay under clause 10.1 for absence caused by an infectious illness contracted directly in the course of employment. The Employment Tribunal found that the visit was connected with, but not directly in the course of, her employment and dismissed the claim. The claimant appealed on the construction of the contractual provisions.

1. Appeal allowed. The Employment Tribunal erred in construing the contractual phrase “in the course of the teacher’s employment”. The issue was what the parties had agreed in the Burgundy Book, rather than whether principles governing an employer’s vicarious liability would treat the activity as within employment.

2. Clause 9.1 expressly treated, among other things, participation in extra-curricular or voluntary activity connected with the school as being in the course of employment. Clauses 9.1 and 10.1 used the same expression in closely related provisions. There was no reason to give it a different meaning in clause 10.1. Clause 10.1 therefore covered absence caused by an infectious illness contracted during such an activity.

3. The word “directly” in clause 10.1 could not alter the meaning of “in the course of the teacher’s employment”. It might qualify the contraction of the illness, but it did not narrow the contractual scope of employment established by clause 9.1.

4. On the Tribunal’s findings, the visit was undertaken with the school’s permission and approval and was connected with the school’s planned overseas link. The activity was closely analogous to voluntary activity connected with the school. It did not matter that the claimant initiated it, travelled during a holiday, was not on an official visit, or acted outside her normal duties. The illness was contracted in the course of employment and the claimant was entitled to payment under clause 10.1.

• Employment Appeal Tribunal: allowed the claimant’s appeal and held that she was entitled to payment under clause 10.1 of the Burgundy Book.

• Employment Tribunal: dismissed the contractual sick-pay claim, holding that the Gambian visit was connected with employment but was not directly in the course of it.