England and Wales High Court (Queen's Bench Division) Decisions

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Cite as: [1973] ITR 43, [1971] EWHC QB 1

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JISCBAILII_CASE_EMPLOYMENT

		BAILII Citation Number: [1971] EWHC QB 1
		Case No. 150/66

IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION

Royal Courts of Justice

7th October 1971

B e f o r e :

Lord Widgery, C.J.
Bridge, J.
and
Shaw, J.
____________________

	PARKES CLASSIC CONFECTIONERY LIMITED	Appellants
	- and -
	ASHCROFT	Respondent

____________________

R. Gibbs (instructed by Nicholson, Graham & Jones, agents for Price, Atkins & Price, Birmingham) for the appellants.
W. Barnett (instructed by John Silk & Co., Birmingham.) for the respondent.
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Widgery, C.J.: This is an appeal against a decision of an industrial tribunal given on the 28th April, of this year, determining that the applicant before the tribunal, a Mrs. Ashcroft, was entitled to a redundancy payment under the Redundancy Payments Act, 1965.

The point which is raised is somewhat unusual and not to be equated with the more common disputes with which the Court is often concerned, because there was no dispute there at all about Mrs. Ashcroft's employment by the respondents, and no dispute that she had been in due time dismissed, and dismissed on account of redundancy, so that the familiar problems do not arise in this case at all. The only obstacle to her being entitled to a redundancy payment in those circumstances arises out of the possibility that her employment was not employment of the category which attracts a payment under the Act.

One starts with section 1 of the Redundancy Payments Act 1965, which provides that a redundancy payment may be claimed by a worker where on or after the appointed day the worker has been continuously employed for the requisite penou. One then goes to section 8 of the same Act, where it is provided in subsection (1):

"For the purposes of section 1(1) of this Act the requisite period is the period of one hundred and four weeks ending with the relevant date, excluding any week which began before the employee attained the age of eighteen".

By sub-section (2):

"Subject to the preceding subsection, and to the following provisions of this section, the provisions of Schedule 1 to the Contracts of Employment Act, 1963 (computation of period of employment), and the provisions of any order for the time being in force under section 7 of that Act in so far as it modifies that Schedule, shall have effect for the purposes of this Part of this Act in determining whether an employee has been continuously employed for the requisite period".

So we have the requisite period being 104 weeks, and a reference to the Act of 1963 to determine whether employment has been for these purposes in force during that period.

I go to the First Schedule of the Act of 1963, which provides in paragraph 3:

"Any week in which the employee is employed for, twenty-one hours or more shall count in computing a period of employment".

Paragraph 4:

"Any week during the whole or part of which the employee's relations with the employer are governed by a contract of employment which normally involves employment for twenty-one hours or more weekly shall count in computing a period of employment".

I read those two provisions together as meaning that in the ordinary way in deciding what weeks count towards the total of 104, one asks oneself whether in regard to the individual week the employee was employed for twenty-one hours or more. However, if there is a contract of employment and that contract of employment contemplates a normal working week in excess of 21 hours, then the employee may count for present purposes a week in which her actual employment was less than 21 hours. It is those matters which are relevant in the present case.

Mrs. Ashcroft had worked for Parkes Classic Confectionery Ltd., since 1954, but it was not of course until the passing of the Contract of Employment Act, 1963, that her employers were under any obligation to provide a statement in writing of the terms upon which she was employed. Pursuant to that Act, however, they provided her with a statement in writing setting out the particulars of her employment. It was in the form of a proforma document, no doubt intended to be used widely throughout the employment of the employers, and as far as is relevant to Mrs. Ashcroft the particulars provided as I read them that she shall work from Monday to Thursday inclusive from 1 o'clock until 5.30 and on Fridays from 1 o'clock to 5 o'clock. The form had many other entries in it which have been struck out as not applying to her, and that to my mind is the effect of the statement issued to her in 1964; as a matter of arithmetic that contemplated that she should work 22 hours each week. Accordingly, on the face of it she had at the relevant time a contract of employment providing under the terms of paragraph 4 of the Schedule employment which normally involved more than 21 hours of the week.

Before the tribunal it was urged that although the contractual terms in 1964 contemplated a 22 hour week, that this had been changed. A good deal of argument was addressed to the tribunal and a certain amount of evidence was called in support of this proposition. In particular the employers gave evidence of a number of notices which were placed on the notice board from time to time which amounts to changes in what they called the normal factory hours. But for my part I am not impressed by the significance of those notices, referring as they did to the general body of employees and not of necessity referring to Mrs. Ashcroft, who did not work normal factory hours because she did not work in the mornings; she was a part-time worker in the afternoons only.

The tribunal in reaching the necessary conclusion in this case, that is to say the tribunal in approaching the issue in this case, namely whether there had been a change in the contractual terms, were in my judgment unduly influenced by other provisions in the Act of 1963. By section 4 of that Act not only is there an obligation on the employer to provide written particulars of the terms of employment for each relevant employee, but in sub-section (4) there is a specific provision in regard to changes in those terms. It reads as follows:

"If after the date to which the statement relates there is a change in the terms to be included, or referred to, in the statement, the employer shall, not more than one month after the change, inform the employee of the nature of the change by a written statement and, if he does not leave a copy of the statement with the employee, shall preserve the statement and ensure that the employee has reasonable opportunities of reading it in the course of his employment, or that it is made reasonably accessible to him in some other way".

The purpose there is clear enough. The employer starts by giving the employee a statement of the terms of her employment, and if there is subsequently a change, a further written statement to reflect the change is contemplated. In the absence of the furnishing of such a written statement the employer may incur a criminal penalty, but in my judgment there is nothing in section 4 to provide that a change in the contractual terms shall be ineffective between the parties merely because the employer has failed to give written notice of the change and may thus be involved in a criminal responsibility.

Further, where the change is of such a character as to bring the employer outside the contemplation of section 4 altogether, it may well be that subsection (9) of that section authorises the change to take place without any written statement at all, but I need not develop that particular question because in my judgment it is not really material to the issue before us.

The tribunal were, I think, over-influenced by section 4(4). They took the view and they expressed it very clearly that in the absence of a further written statement by the omployer the supposed change in the contractual terms, if one had occurred, would not be effective. In my judgment that was a misdirection on the part of the tribunal for the reasons which I have already given, and if in fact there was a change in the contractual terms so as to exclude Mrs. Ashcroft from the category of employee entitled to a redundancy payment, I think that the employers are entitled to take advantage of that fact even though they may have incurred a criminal penalty through failure to notify the change in accordance with the section So it has been necessary for us to look at the material which was before the tribunal, and such additional material as there is before us, to see whether there is a basis whereupon which it ought to be concluded that Mrs. Ashcroft's terms of employment were changed, and changed to such a degree as to bring her outside the category of employees entitled to benefit.

There are items in the evidence called before the tribunal which are not in themselves very conclusive. There is a reference to the fact that she received holiday pay on the basis of a 20 hour week, and there is a great deal of evidence put before the tribunal in the form of cards recording her working week which the tribunal, I think, were deflected from considering by reason of the view they had taken of the effect of section 4 of the Act of 1963.

We, with the assistance of counsel, have looked at this additional information with some care. It records Mrs. Ashcroft's working hours in detail for a period beginning in April, 1970, and concluding at the date of her dismissal, which was in January, 1971. A perusal of her work card for that period week by week shows that of the weeks in question she worked 21 hours or more in fifteen weeks, 20 hours in ten weeks and less than 20 hours for the further weeks The pattern of her work seems to follow no consistent range; she worked fairly regularly from 1 o'clock in the afternoon, but the hour at which she left, be it 5 o'clock or 5.30, varies considerably over that period in what to my mind at any rate is no clearly discernible pattern

I do not think that we can reach a satisfactory conclusion on the evidence before us, and I think it necessary to send this matter back to the tribunal in order that they may further investigate the question. In sending it back to the tribunal, I would invite them to pay attention to the following matters: first of all the fact that the initial particulars of employment disclosed a 22 hour week which has not been varied by any formal notification under section 4, gives the employee a substantial foundation upon which to build her case. It is, of course, perfectly possible that that contract was varied, but I do not think that the tribunal should lightly accept a variation in the absence of evidence which, in their judgment, makes it necessary that they should. Furthermore, it seems to me that there are three possibilities here. One is that the contractual terms were never varied at all, and that the parties have gone on with an effective contract between them specifying 22 hours as the normal working week not meticulously observed by Mrs. Ashcroft, but nevertheless a contract still legally in existence. The second possibility is that the contract has been consensually varied so as to substitute some normal working week of shorter duration than the original 22 hours. It may be that when the tribunal consider this matter in detail, as I am sure they will, that they will be able to find a date upon which it can be said that there was a consensual change expressly or by necessary implication between the parties whereby the normal working week was varied. If they reach that conclusion and are satisfied of it by the evidence, then they should proceed on the footing that the new normal period of work is the relevant one as from the date of change.

The third possibility it seems to me is that the tribunal may reach the conclusion that the original contractual term providing for a normal week of 22 hours has been abandoned by agreement between the parties, and that over the relevant period there has been no effective contract at all which regulates the period of the working week. I include that as one of the possibilities because of the irregular pattern of working hours which has been disclosed to us, in the records concerning Mrs. Ashcroft's last eighteen months or so with the company. It is quite possible that the conception of the normal working week became abandoned by mutual agreement between the parties, and nothing was substituted for it. If that is the case, then Mrs. Ashcroft can no longer contend that she has a contract of employment providing for a normal working week of 22 hours or anything else.

I hope that those observations will assist the tribunal in their deliberations, but I am satisfied for my part that the appeal should be allowed and the matter sent back for reconsideration in the light of the opinion of the Court.

Bridge, J.: I so fully agree with everything that has fallen from my Lord that although we are saying that the tribunal came to their conclusions for the wrong reasons and in that sense differing from them, I do not think I can usefully add anything.

Shaw, J.: I also agree.

Appeal allowed Case remitted to tribunal