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court ref no: SSRTF 95/1252/B ...
court ref no: SSRTF 95/1252/B

A Cambridge day care assistant has struck a blow for casual employees' rights when the court of appeal upheld her entitlement to statutory sick pay over a six-month period in 1992 when she was off work with an injured neck.

45-year-old Sally Brown's case was supported by the Child Poverty Action Group who expect the court's ruling to have a wide-ranging impact on the rights of those employed on day-to-day or other short-term contracts.

Mrs Brown - who was represented in court yesterday by Cherie Booth QC, wife of Labour leader Tony Blair - was taken on as a day care assistant by the Granta Housing Society Ltd, in Cambridge, in September 1991.

She injured her neck on June 20 1992 - when she had been working for Granta for just over nine months - and was off work sick until December 9 that year.

Her employers refused to pay her statutory sick pay on the basis that her daily employment contract effectively expired at the end of each working day.

Lord Justice Nourse said she had since fought her case before a Social Security Special Adjudicator, the Social Security Appeals Tribunal and a Social Security Commissioner, each of which had upheld that the employers' view that she was not entitled to sick pay.

But the judge said the commissioner had 'understandably' overlooked the provisions of Section 49 (4) of the 1978 Employment Protection (Consolidation) Act.

As Mrs Brown had enjoyed 'continuity of employment' with Granta for more than three months, the statute operated to create a 'deemed' contract for an 'indefinite period'.

She had, by statute, been entitled to a minimum of one week's notice and, as no such notice was given, her employment contract had 'subsisted' throughout her period of sickness, the appeal judge ruled.

'I conclude that Section 49 (4) does indeed apply to Mrs Brown's case. The result is that her contract had become a contract for an indefinite period only terminable by not less than one week's notice, which notice was never given'.

The judge said Granta had 'assumed throughout' that her contract had been on a 'day-to-day basis', and they were not obliged to give her any notice of termination.

Lord Justice Auld and Sir Patrick Russell agreed with Lord Justice Nourse's ruling.

But the court heard that Mrs Brown's fight for an estimated £1,200 statutory sick pay has yet to reach a final conclusion.

The appeal court returned her case to the Social Security Appeals Tribunal with a direction to reconsider the case in the light of the court's decision.

Michael Kent QC, for the Chief Social Security Adjudication Officer, said there might still be 'issues of fact' to be resolved by the Appeals Tribunal between Mrs Brown and Granta.

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