England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT TRIBUNAL

		Royal Courts of Justice Strand London, WC2A 2LL
		9 December 2003

Tuesday, 9 December 2003
1. LORD JUSTICE BROOKE: I will invite Sedley LJ to give the first judgment.
2. LORD JUSTICE SEDLEY: This is a renewed application for permission to appeal against a decision of the Employment Appeal Tribunal (presided over by His Honour Judge Burke QC) given on 25 September 2003 - almost five months after the single day on which the appeal has been argued. The EAT allowed a former employee's appeal against the finding of an Employment Tribunal at Ashford, handed down on 7 August 1992, just over a week after the conclusion of two days of argument.
3. The single issue before the Employment Tribunal, to which the claim had been whittled down from a plethora of arguments which had gone nowhere, was whether the hours in excess of his standard working week of 37 hours which the applicant had worked on standby as the respondent's manager of out-of-hours social services for the Medway and Swale area fell to be remunerated as time spent on "duties" which he had been "required to undertake". These key words come from paragraphs 3-11(b) of the Blue Book which contains the applicant's terms and conditions of employment.
4. The Employment Tribunal held that although work done by the applicant was, in effect, work that he was committed by his employment to doing if no-one else was on call, it was not a contractual requirement that he should do it - only a "strong moral obligation" - and therefore not a requirement within the contractual provision. At paragraph 18 they said:

"The applicant also told us that he was quite clear from discussions at his interview that he was going to have to work 'a lot' of his time out of hours. We find that it was implicit in that realisation that this was going to be part of his managerial responsibility and therefore covered by his salary. He was the manager of the service, and we consider that it was up to him to manage that service so as not to be the sole or main provider of the on-call cover. He was not assisted in this by his own managers, however, and was in a very difficult position in that he considered that it was vital that management cover was available, but he was not being given the staff with which to provide it. The troubles of a new service which was intended to be run by a rota, meant that the Applicant felt obliged to be on call himself so that the service did not fail. That was not envisaged by his managers, but they were content to let him take the burden and then to enter into protracted negotiations to remunerate him when he protested."

5. On appeal the Employment Appeal Tribunal held that the Employment Tribunal had misconstrued the word "required", and that the word included work which, in the absence of anyone else to do it, it was necessary that the applicant should do or which he was expected by the Council to do. It does not seem to have been argued to the EAT that even if the contract had the narrow meaning preferred by the Employment Tribunal, the applicant's standby hours beyond the basic 37 were contractual hours. The EAT, however, remitted the claim for the Employment Tribunal to decide whether the applicant's standby work had fallen into the wider class described by them.
6. The material class entitled to a standby duty allowance is "employees who are required to undertake standby and call out duties". The EAT said (at paragraph 47):

"We have no doubt that there would have been a requirement if the obligation to carry out the on-call duties had been spelt out in the contract of employment or if Mr Grant had been ordered by his superior or superiors to carry them out; but, in addition, in our judgment, if it was necessary for Mr Grant to carry out the on-call duties in order that they should be properly performed, ie so that there would always be someone available on-call at evenings and at weekends, or if it was expected by the Council that (at least in the absence of anybody else) Mr Grant would perform such duties, he was in a very real sense required to carry them out; and such a requirement would have been sufficient to bring him within the terms of paragraph 11(b)(i) of section 3 of the Blue Book."

7. Before us Mr Pitt-Payne submits that it is only if the specific job is directed to be done by management, or is required by the contract of employment to be done, that out-of-hours standby time is to be paid for; if not, then it is not. Thus, if Mr Grant had told another manager to do standby out-of-hours, or if he himself had been directed by his own manager to do it, he would be entitled to be paid. But if, as manager, he decided himself to do the standby on-call work, then he was not, Mr Pitt-Payne submits, entitled to be paid.
8. Sir Martin Nourse remarked, in refusing permission to appeal on the papers, that the construction sought by the county council and elaborated in this way by Mr Pitt-Payne was unmeritorious. I myself might have used a stronger word for an argument that would deny people in the applicant's position any pay for long hours spent carrying out the Council's statutory functions.
9. However in his skeleton argument Mr Pitt-Payne has submitted first that the natural ordinary meaning of "required" is "contractually required". It is enough to say that, like the EAT and Sir Martin Nourse, I disagree. Millions of things in life are required without being the subject of contractual or legal obligation.
10. Next it is argued that elsewhere in the Blue Book the word "required" is "in most cases" used contractually, but the very qualification "in most cases" destroys any possible reliance on this argument. So, as it happens, does the single example actually given in the skeleton argument, which seems to me a plainly non-contractual usage. Then it is argued that the word should take its colour from the employment legislation where it is typically used with a contractual connotation. For my part I see no reason to construe a contract, even a contract of employment, by reference to Parliamentary usage, and I do not see that the Commissioner's decision which is cited, to the effect that voluntary work is not required work, is of much help. Mr Grant was doing his job; he was not doing voluntary work.
11. As it happens, the EAT sidelined a decision of Lewis J in Henaghan v Rederiet F orangirene [1936] 2 All ER 1426 which, as Sir Martin Nourse points out, supports the applicant's case on the meaning of "required". Lewis J held that the necessity of doing what the claimant had been doing at the time of his accident meant that he had been required to be where he was within the meaning of the material regulation without having been directed to be there.
12. Even so, it is submitted by Mr Pitt-Payne that the formula arrived at by the Employment Appeal Tribunal creates vagueness or uncertainty which may be productive of difficulty and bad claims. Those instructing him estimate that perhaps 1500 employees of Kent County Council may fall into this category. I am, for my part, not at all impressed by the argument from consequences. If the Council wishes to limit what is required within the broad meaning given by the EAT it has only to instruct its staff accordingly.
13. What, however, may be productive of difficulty is the second limb of the EAT's construction of the word "required". I have no difficulty, for myself, with the holding that that which was necessary in order that Mr Grant's duties be properly performed was required within the meaning of the Blue Book. However the EAT have added "or if it was expected by the Council", and this, I can see, is capable of creating some difficulty of application.
14. The construction arrived at by the EAT has been the subject of remission to the Employment Tribunal. They have to apply it to the facts, which are not crystalline, as has been seen. In this situation, I accept that the second limb of the EAT's construction creates an issue which it is desirable that this court should consider - upon one condition. That condition, which was canvassed by my Lord with counsel for the local authority in open court, is that the local authority should be prepared, if it pursues the appeal, to pay both sides' reasonable costs, win or lose. It is right that Mr Pitt-Payne should not be asked today to give a formal undertaking. Those who are responsible for the Council's finances are going to have to decide whether this game is worth the candle. If they decide that it is not, then nothing more will be heard of this appeal; the case will simply go back, as directed by the EAT, to the Employment Tribunal. If authority is given then, for my part, upon the terms I have indicated, I would be prepared to grant permission to appeal for the reasons that I have given.
15. LORD JUSTICE BROOKE: I agree.

(Application granted; costs to be costs in the appeal; time estimate half a day; 14 days for the Council to make decision; the costs of the appeal and any cross-appeal will be borne by the Council; three-judge constitution may include a High Court judge, at least one member of the Tribunal to have experience in employment law).