Department of Work and Pensions v Sutcliffe

For a contract term to have effect, employees generally need to know about it. In Department of Work and Pensions v Sutcliffe, however, the Employment Appeal Tribunal (EAT) said that a maternity leave policy was incorporated into the woman’s contract even though she could not access it during her sick leave and subsequent maternity leave.

Basic facts

On starting work as an administration officer for the DWP in April 2006, Ms Sutcliffe told her employer she was pregnant. In May she completed a maternity leave application form, saying she wanted to start her leave on 1 August.

She then faxed the application form to the employee service centre on 2 June, explaining that, due to pregnancy-related complications, she was off sick for four weeks. As it happens, she remained on sick leave until January 2007, but only received full sick pay for June and July.

On 17 July Ms Sutcliffe received a written contract from the DWP, which stated that she was entitled to full pay during sick leave minus Maternity Allowance for up to six months in any 12 month period. It also stated that full details of the DWP’s maternity leave policy could be found on the intranet (which she could not access from home), setting out her entitlement to 52 weeks’ leave plus “all contractual entitlements during the first 26 weeks … apart from remuneration.”

On 1 August her sick pay stopped and she received maternity allowance instead. In late August she wrote to her employer asking for her sick pay to be reinstated but the DWP refused. She claimed unlawful deduction from wages. The DWP said that as she was not entitled to remuneration during maternity leave, she could not be entitled to sick pay.

Tribunal decision

The tribunal, however, disagreed. It said that her contract entitled her to enjoy “sick absence on full pay less any … Maternity Allowance received”. As Ms Sutcliffe had been signed off sick by her GP for the full period of her maternity leave, then she was entitled under her contract to sick pay for that period. This right was not affected by the 1996 Employment Rights Act (ERA) nor the 1999 Maternity and Paternity Leave (MPL) etc Regulations (which exclude the right to pay during maternity leave) as sick pay did not constitute “remuneration.”

It also said that the terms of the maternity leave policy were not incorporated into the contract because Ms Sutcliffe was unable to access it after she received her contract. However, even if it did apply, it said that the policy provided for the payment of sick pay in the event of sickness during maternity leave.

EAT decision

The EAT said that if the tribunal was right that the maternity leave policy was not incorporated into her contract, then Ms Sutcliffe was dependent on her statutory rights under section 71 of the ERA. That was fatal to her as the relevant sections of both the ERA and the MPL regulations include sick pay as “remuneration”.

In any event, it decided that the maternity leave policy was incorporated into the contract of employment “by virtue of the notification in the contract document … of the full details of her Conditions of Service on the intranet site”. Just because Ms Sutcliffe did not have access to the intranet during her absence did not mean that the policy was not incorporated. The DWP had done what it could to bring it to her attention.

Finally, it said she could not rely on the paragraph in the policy stating that employees could give notice of early termination of maternity leave to claim sick pay during their leave, as she had not given the relevant notice.

The EAT therefore allowed the appeal.