United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 419_95_1312

Appeal No. EAT/419/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13 December 1995

HIS HONOUR JUDGE H J BYRT QC

MISS C HOLROYD

MR D A C LAMBERT

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MR J CHAMPION AND OTHERS          APPELLANTS

REGENT OFFICE CARE LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR T CEDENIO

Representative

Employment Advice and

Tribunal Service

32 Castle Road

Epsom

Surrey KT18 7NZ

For the Respondents MR C RUSS

Director


 


JUDGE BYRT QC: This is an appeal against a decision promulgated on 9 January 1995 by the London South Industrial Tribunal when they unanimously held that the claims of all three Applicants under the Wages Act, 1986 had failed. The same Tribunal unanimously held that the Applicants, Mr and Mrs Champion, had been unfairly dismissed and to that extent they succeeded, but they found that each of them were 100 percent responsible for their dismissal and so there was no monetary award. All three Applicants appeal against the dismissal of their Wages Act claim and Mr Champion appeals against the finding that he was 100 percent responsible by his own contributory conduct to his dismissal.

The Respondents are a cleaning company. They employ cleaners under separate contracts in relation to each site cleaned. Each contract has a stipulated number of hours allocated for the cleaning of the site and the issue in this case has turned on what was the correct contractual basis for payment.

All the three Appellants are cleaners employed by the Respondents in that way. Mr Champion joined the firm in July 1991. Mrs Champion joined in September 1991 and Mr Benstead joined on 21 June 1993 and, in consequence, had not been working for the Respondents for a year by the time of his dismissal.

The claims arise by reason of the fact that each of the three Appellants claimed that they worked so hard at the individual contracts when on site that, notwithstanding the hours allocated for that work, they were able to complete their cleaning duties within a proportion of the hours allocated by contract. Consequently, over the course of time they developed the practise of leaving the job early when they had finished their work, and then of submitting time-sheets which claimed that they had worked throughout the whole of the period of the allotted hours and claimed pay from the Respondents on the basis of those time-sheets.

Whilst Mr Taylor was the area manager, there was some laxity. He suspected that these three employees were leaving the cleaning sites early but when it came to give evidence before the Industrial Tribunal he said, of course, that the allocation of the hours for each cleaning job was never generous and, accordingly, he was talking in terms of these Appellants leaving perhaps five or ten minutes early but no more and on that basis he sanctioned it.

Mr Russ, in addressing us on behal of the Respondents, has accepted that those sort of marginal minutes of time when a cleaner might leave a site early, were not the subject matter of the dispute in this case. Mr Taylor left in February 1994, and in late February or early March, a Mr Coulson (Group contract manager) and a Mr Shepherd (Branch manager) became involved in working at cleaning sites adjacent to those on which the Appellants worked. They had both got the impression that the Appellants were leaving the job well before the allotted hours for that specific cleaning job. Accordingly, they arranged began to monitor closely the hours each of these Appallants spent on the individual cleaning jobs and recorded the hours. Whilst that process was in hand, Mr Coulson orally warned each of the three Appellants on 4 March that they were required to work the full allotted hours for each specific job and that they would only be paid for the hours that were spent on doing the job. The evidence was, and I do not think it was challenged, that there was no protest by any of the three Appellants at the time of the warning. Indeed, it was not challenged at the Industrial Tribunal that such a warning was given. Yet, notwithstanding, the three Appellants continued to adopt precisely the same practice as if there had been no warning by Mr Coulson at all.

The crunch came at the end of the month when, instead of the Respondents paying the Appellants the full wages, as if they had worked the full contractual allocated hours of each job, they were paid according to the hours that they had been monitored to have worked. As a result, Mr Champion found the wages he was paid by the Respondents to be £80 less than that which he had anticipated according to his time-sheets, Mrs Champion, £192 less and Mr Benstead £375 less.

At the Industrial Tribunal, the hours monitored were not challenged nor were the mathematical calculations of the amount that each Appellant was due in terms of wages challenged. What was challenged was the right of the Respondents to pay each Applicant only for the hours that they had worked as opposed to the full amount due to them as per the allocated hours.

The Appellants claim that they were entitled to payment for the full allocated contractual hours and that any deduction from their due was illegal under the Wages Act 1986. They say that, in making the deductions, the Respondents had, in effect, changed the terms of the contract on 4 March and they were not entitled to do that unilaterally.

The Respondents, in their argument, say that there is no question of an illegal deduction being made. They paid the Applicants precisely the amount of money which they had earned by the number of hours that they had worked and the Wages Act did not come into the picture at all.

The Industrial Tribunal, having considered the evidence with great care, came to a finding that the original contractual arrangement was that each cleaning site would have an allocated number of hours which would be an estimate of the time it was expected it would take a cleaner to do the job thoroughly and that the cleaners were expected to spend that amount of time on the job or, if it was less, that they would record that on their time-sheet. Then they found that, pursuant to the contract, the Appellants would be paid at the contracted rate per hour for the lesser hours; that that lesser sum would in fact be the contractual payment, and not one less deductions at all. In conclusion, they found that there was no variation of the contract by reason of the warning of 4 March and, in consequence, they dismissed all three claims under the Wages Act.

The responsibility of this Tribunal is to consider the reasons of the Industrial Tribunal to see whether they had erred in law in any particular respect. In the process of doing that, we are entitled to review the findings of fact of the Industrial Tribunal in order to ascertain whether they might in any sense be called perverse, namely, a finding which no reasonable Tribunal could come to.

We have had a look at some of the documentary evidence to which Mr Cedenio, on behalf of the Appellants, has directed our attention and we have had a look at the time-sheets in particular. The format of the time-sheets appears to have been drawn up by the supervisor of these three cleaners, namely, Mrs Champion. The column in which the total of the number of hours for which they are claiming payment, is headed with the words "actual hours". Mr Cedenio says that "actual hours" means allocated hours, the nominal amount of time which the Respondents allowed for this particular cleaning job. We find that this is a strained interpretation, one which the Industrial Tribunal were certainly entitled to reject if they were minded to do so.

The second matter which the Industrial Tribunal took into account is the fact that, if the Appellant's case was right that they were entitled to payment for the full amount of the allocated hours,there would be no need for time-sheets. We find that this, too, is a reasonable assumption or finding by the Industrial Tribunal. In that these latter two points ultimately led the Industrial Tribunal to find that the Appellants were only entitled to payment for the hours they worked, we do not see that that finding is an unreasonable one for them to make. In consequence, it was not one that we, as an Appellant Tribunal, think we should disturb. In all the circumstances, therefore, the appeal for a finding under the Wages Act is dismissed.

The next stage of the appeal relates to the position of Mr Champion and Mr Champion alone. Both claimed that they had been unfairly dismissed. The situation is that, on 11 April 1994, they wrote to the directors of the Respondent company saying that they had been trying to contact Mr Coulson in order to discuss the shortfall in the wages they had been paid at the end of March but that they had been unsuccessful. They then indicated that they proposed to take industrial tribunal proceedings if they could not reach a satisfactory arrangement with the Respondents. In fact, the same day, they made their originating applications to the Industrial Tribunal. On 25 April, Mr Russ, a director of the Respondents, wrote a sharp letter in reply to the Appellants in terms which put the Respondents' position without any ambiguity. He advanced the proposition that each of them were only entitled to payment for hours they actually worked, and stressed that any falsification of the time-sheet to show anything else would be interpreted as gross misconduct. Any repetition of the conduct which had been going on in the past, despite the warnings of 4 March, would be deemed a cause for dismissal without notice.

There is an intermediatory issue at that particular point. Mrs Champion accepted that she had received a letter in those terms but Mr Champion denies that he did so. However, at the Industrial Tribunal he acknowledged that he had seen his wife's letter and was familiar with the contents of it. In our judgment, that disposes of any argument that, thereafter, he acted in ignorance of the Respondents' position or that he had had no warning.

In any event, notwithstanding the warning of 25 April, the practice of claiming on the basis of inflated time-sheets continued and, in due course, on 20 May, the Respondents called upon Mr and Mrs Champion to attend a disciplinary meeting. The meeting was called at short notice and the purpose of the meeting, as the Industrial Tribunal found, was in effect to dismiss Mr and Mrs Champion. It was the Industrial Tribunal's finding that Mr Coulson had, in fact, already made up his mind before the meeting to dismiss the Champions and that no explanation the Appellants might have been able to advance at the meeting was going to persuade him to change his mind. The Industrial Tribunal noted that there had been no prior notice given of this meeting to the Appellants, no copies of the inaccurate time-sheets were provided and, in general, the Industrial Tribunal took the view that none of the precautionary steps necessary to safeguard the interests of an employee were taken on this occasion by the employers. There was an issue at the meeting as to whether Mr Coulson had, first of all, enquired of the Appellants whether they were intent on pursuing their claim before the Industrial Tribunal and that when they indicated that they were, they were each dismissed for that reason. Mr Coulson denied that, and said that the basis of the enquiry at the meeting was the falsified time-sheets which had been admitted. In any event, the meeting only lasted ten minutes and the result was that Mr and Mrs Champion were dismissed.

The Industrial Tribunal took the view that plainly there was a dismissal, and that this was due to the conduct of the Appellants. However, they took the view that there had been no fair hearing, that none of the procedural measures had been taken to safeguard the interests of the employees and, accordingly, they held that the procedures at the meeting were contrary to the rules of natural justice. For those reasons they had no doubt that the dismissal was unfair.

When they came to consider the question of contributory conduct, they found that both Mr and Mrs Champion were 100 percent responsible by reason of their conduct for their own dismissal. As I understand it, there is no appeal against that finding in respect of Mrs Champion, perhaps by reason of the fact that she was a supervisor, we know not. The appeal concerns Mr Champion alone, and his case is based upon the fact that he had not received the written notice contained in the letter dated 25 April, as did Mrs Champion. He says that in some way that was a formal but critical hurdle the Respondents had to clear before they were entitled to proceed with dismissal.

The remaining points, made by Mr Cedenio on this particular part of the appeal, were, first, to stress and underline the fact that there had been written references included in the evidence before the Industrial Tribunal which showed that Mr Champion and his colleagues had been assiduous, hard-working and good workers and that those references came from the people for whom they had worked, the customers. Further, he drew attention to the fact that in the letter of 25 April the employers had undertaken to provide a signing-on and a signing-off book so that the precise hours which each Appellants had worked at a given site, could be accurately recorded. Mr Cedenio says that the Respondents failed to provide such a book and that if they had done so, it may well be that Mr Champion would not have entered inaccurate particulars in his time-sheets and so been dismissed for that reason.

For all those reasons, Mr Cedenio has invited us to have a look again at this Industrial Tribunal finding that Mr Champion had contributed 100 per cent to his dismissal and perhaps possibly substitute some other finding.

When an Industrial Tribunal comes to an assessment of this sort, it takes into account a number of issues which are raised by the evidence. There is no necessity for the Industrial Tribunal to set out each and every point, taken into account or discarded in coming to their finding. That finding entails an assessment which involves a delicate balancing of the relevant factors they heard in evidence. As we have not heard that evidence, we are considerably handicapped in coming to alternative estimate.

We have to ask ourselves as to whether, on the evidence that was before the Industrial Tribunal, their finding in relation to contributory conduct was one which a reasonable Tribunal could have come to. Having regard to the evidence in this case, we find that we are unable to say that their finding in this respect was unreasonable and, of course, we take into account the warning on 4 March and again the warning on 25 April. We think that there is no significance that in Mr Champion's case the latter warning happened to come to him secondhand, as a result of reading the letter which had been sent to his wife. It is quite natural that he would see such a letter, that they would discuss it and, indeed, Mr Champion acknowledged before the Industrial Tribunal that he was fully acquainted with the cautionary tale that it told.

In all the circumstances, we do not feel that it would be right to interfere with the Industrial Tribunal's finding as to 100 percent contributory conduct and accordingly the appeal in respect of that assessment is also dismissed.