Milson v Hope

Where the statutory notice-payment provisions apply, an employee who is incapable of work through sickness is entitled under Employment Rights Act 1996 section 88 to normal pay only for the statutory minimum notice period required by section 86. The provision does not extend statutory notice pay to a longer notice period which the employer in fact gave.

Section 87(4) disapplies the statutory scheme where the contractual notice period exceeds the statutory minimum by at least one week. However, that issue cannot determine an appeal where the tribunal made no finding of the contractual notice term and an appellate tribunal cannot make that factual finding itself.

The claimant was employed as a companion and domestic helper from October 2007. After their relationship broke down, the respondent dismissed her and gave one month’s notice. The Employment Tribunal at Leeds held that the dismissal was unfair and awarded compensation, including £1,010 for failure to pay during the four-week notice period while the claimant was absent through sickness.

The respondent appealed only that contractual award. She contended first that an implied contractual one-month notice term engaged section 87(4) of the Employment Rights Act 1996, and secondly that any statutory entitlement was limited to the two-week minimum notice period under section 86(1)(b). The central issue was the extent of statutory notice pay under sections 86 to 88.

1. Appeal allowed. The Tribunal erred in awarding statutory notice pay for the whole four-week notice period. Under section 87(1), section 88 applied only in respect of the period of notice required by section 86(1). Given the claimant’s length of service, that period was two weeks under section 86(1)(b), not four.

2. Section 88(1) required payment during those two statutory weeks even though the claimant was incapable of work through sickness. Statutory sick pay was deductible from that liability under section 88(2). The correct statutory sum was therefore £484 rather than £1,010.

3. The Tribunal could not uphold the alternative argument based on section 87(4). That provision would disapply the statutory scheme if the contractual notice period were at least one week longer than the statutory minimum. Although an employment contract without an express notice term carries an implied term of reasonable notice, the Tribunal had made no finding as to any express or implied contractual notice period. The Appeal Tribunal could not make that factual finding, and the appellant did not pursue a remittal.

4. It was neither proportionate nor realistic to remit the question whether any common-law entitlement existed for the remaining two weeks. The claimant had received statutory sick pay, there was no apparent contractual sick-pay provision, and the prospects of establishing a further entitlement were very small. The £1,010 award was set aside and replaced with £484, with interest.

• Employment Appeal Tribunal: Allowed the respondent’s appeal against the notice-pay award and substituted £484 for £1,010.
• Employment Tribunal, Leeds: Judgment sent to the parties on 1 May 2012. It found the claimant unfairly dismissed and awarded four weeks’ notice pay under sections 86 to 88 of the Employment Rights Act 1996.