The Burgundy Book (the Conditions of Service for School Teachers in England and Wales) provides that a teacher is entitled to full pay where her ‘absence was due to an infectious or contagious illness contracted directly in the course of the teacher’s employment’, and that ‘such absence was not be reckoned against the teacher’s entitlement to sick leave’.
The meaning of the phrase ‘in the course of the teacher’s employment’ for these purposes was recently considered by the Employment Appeal Tribunal (“the EAT”) (presided over by Mitting J.) in O’Brien v. the London Borough of Haringey, The Governing Body of Coleraine Park Primary School (UKEAT/0167/12).
The facts were rather unusual. The primary school wanted to be part of a British Council initiative which involved creating links between schools around the world. A school teacher, Ms. O’Brien, had travelled to Gambia, and visited a school there. On her return, Ms. O’Brien sought to make arrangements for the primary school to be linked with the Gambian school. She also planned to visit that school during the next half-term holiday, where she would exchange materials with the Gambian school. It was agreed with her school’s head teacher that she would make the visit to Gambia, paid by herself, and would exchange the materials. Also, that she would be given paid leave for one day to allow her to fly out to Gambia.
Ms. O’Brien visited the school in Gambia, but unfortunately contracted cytomegalovirus during her visit there as a result of contact that she had with local schoolchildren. Ms. O’Brien subsequently claimed that she was entitled to be paid during her illness, as well as a further related illness, on the grounds that she had contracted the illness directly ‘in the course of [her] employment’.
Ms. O’Brien’s claim was dismissed by the Employment Tribunal, but succeeded before the EAT. The EAT rejected the analogy with tortious vicarious liability on the basis that the rules for vicarious liability ‘are established fundamentally as a result of a policy decision made by the law about the transference of liability for risks created by wrongful acts by those acting as the employees or agents of another person’. The task for the EAT was said to be different: ‘It is to determine what the two parties to the contract agreed should happen in the event that the employee suffered from illness’. The task, therefore, was to construe the contract. In doing so, the EAT drew heavily on a different paragraph to that dealing with ‘infectious and contagious illness’: the EAT referred to a paragraph of the Burgundy Book dealing with an ‘absence due to accident, injury or assault attested by an approved medical practitioner to have arisen out of and in the course of the teacher’s employment, including attendance for instruction at physical training or other classes organised or approved by the employer or participation in any extra curricular or voluntary activity connected with the school’, where full pay was awarded.
The EAT decided that this paragraph showed what the parties viewed as being “in the course of the teacher’s employment”: it included ‘participation in any extra-curricular or voluntary activity connected with the school’. Although the Burgundy Book had not spelt out the same definition when dealing with contracting illness, the EAT held that there was no reason why the parties should have adopted a different meaning to that for accidents, injuries and assaults.
Applying that definition, the EAT held that Ms. O’Brien’s illness was contracted during the course of her employment:
‘The school wished to take part in the initiative proposed by the British Council. To that end it required a link to be established with an overseas school and the exchange of materials with that school. Although the proposal that the link should be established with the school in Gambia came from the Claimant, it was approved and therefore determined by the acting headteacher that it should be that school with which the link was to be made. The Claimant required the permission of the acting headteacher for two purposes: first, to take the day of school term off to permit her to go to Gambia; and second, to exchange materials, one side of which originated from her school, with the school in Gambia.
The Tribunal’s findings that the visit to the Gambian school and all that went on there were not “part of the claimant’s normal duties” and that it was “her initiative, it was not an official visit” and that it was “not her remit to engage in activities at the school in the Gambia” are not in point. What had happened was that the acting headteacher had agreed that she should go to the school with the permission of the school to exchange materials. It must have been reasonably contemplated that for that purpose she would not simply act as a postwoman but in the interests of furthering the links that it was hoped would be established between the schools and for her school’s purposes that she would go in the ordinary course of her visit beyond those simple tasks.
In the end, what she was doing was an activity undertaken with the permission and approval of the school and connected with it.’
In many ways, the school may feel that this decision is harsh. At most, the relationship between the Claimant’s employment and the Gambian school where she contracted the illness was tenuous. Also, as a matter of contractual logic, the fact that one definition is provided for ‘the course of the teacher’s employment’ in one paragraph does not mean that this can then be translated to a different paragraph. Indeed, the fact that the latter paragraph does not expressly refer to the other definition might suggest that it is not to be used. There may also be policy reasons for the difference in approach, although these do not appear to have been explored before the EAT.
Clive Sheldon QC