United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	ANDREW FREER (Legal Officer) GMB 22-24 Worple Road London SW19 4DD


 


JUDGE HICKS QC: This is an appeal by Mr Ditta and a number of his fellow employees against a decision of the Industrial Tribunal rejecting their applications. It is of some importance to see what that application was, and as expressed in the appropriate form of application it reads:

"DECLARATION OF WRITTEN TERMS AND CONDITIONS. ILLEGAL DEDUCTION FROM EARNINGS."

The first sentence, "declaration of written terms and conditions", it is Mr Freer's case on their behalf, was a reference to Section 11(1) of the Employment Protection (Consolidation) Act 1978, which at the relevant time was in force, although it has now been replaced, and which provides:

"(1) Where an employer does not give an employee a statement as required by section 1 ... that is to say, either because he gives him no statement or because the statement he gives does not comply with those requirements, the employee may require a reference to be made to an industrial tribunal to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the relevant section."

Section 1 requires the employer not later than two months after the beginning of an employee's employment to give a written statement, and the relevant requirements of what that statement is to contain for present purposes are in subsection (3), which requires it to contain particulars of a number of matters of which (a) is the scale or rate of remuneration or the method of calculating remuneration, and (c) is any terms and conditions relating to hours of work including any terms and conditions relating to normal working hours. If the application was indeed an application under Section 11(1) then the first question would be whether any statement complying with Section 1 had already been provided by the employer, and as we read the Industrial Tribunal's reasons they had before them documents which they took to be either directly or by reference to a collective agreement to contain the terms of employment, and they treated their task as being one of construing those documents and considering what the rights of the employer and employee were. Before we proceed further with this judgment, I think we need to enquire whether that is a correct understanding of the position, because certainly as we read the tribunal's decision, they seem to be approaching it on the basis that they are dealing with a contract which in regard to the matters in dispute had been reduced to writing or was contained in documents which were incorporated.

[Submissions from Mr Freer]

JUDGE HICKS QC: We proceed on the basis that, as we understand it from their reasons and from Mr Freer on behalf of the appellants, the Industrial Tribunal did have before it documents which contained agreed terms of employment, but one of the applicants' complaints was that there was no specific provision in those documents for hours of work, and in particular for normal hours of work.

The Industrial Tribunal had to deal with a situation, and this was the substance of the dispute before them, in which the applicants had worked for many years, the tribunal was told from 1979, on the night shift, there being three shifts at that time; one from 6 a.m. to 2 p.m., one from 2 p.m. to 10 p.m. which were counted as day shifts, and one from 10 p.m. to 6 a.m. which was the night shift, but that trading conditions had become such that the employer could not maintain three shifts, and therefore reduced the shifts to two, which meant that the night shift workers had either to be laid off, or transferred to the day shifts. There was, as the tribunal found, an express term of the contract between the employer and the employees embodied, as we understand it, in a collective agreement and negotiated with their union, that the company would not pay off employees, therefore in order to comply with that agreement in circumstances where it was impossible to maintain three shifts the company clearly had to transfer the employees to day shifts, and they did that.

The employees, as we understand it, do not actually complain of that, although for the purposes of maintaining the substance of their argument they do through Mr Freer contend that that employer was not entitled to make that transfer unilaterally, but only by an agreement, a further agreement in which they say that they would have insisted that a term was that they should still receive the night shift premium.

The real substance of the matter was that nobody, as we understand it, at the time suggested that the company was not entitled to transfer them to the day shifts; the real dispute was whether, having done so, the company was still bound to pay the night shift premium, and that was what was the reality of the dispute before the Industrial Tribunal, and the Industrial Tribunal found in favour of the employer, and made clear findings to that effect.

The crux of their reasons is in the middle of paragraph 7 in which they say:

"We find that it was a term in the contract of each of the applicants that he should work in a certain capacity but not specifically on the night shift. To accept the contention of the applicants it would be necessary to imply a term which is not be found in the comprehensive written documents setting out the terms of employment whereby the respondents could be held bound to grant the employees transferred from night shift to day shift to meet temporary circumstances the assurance of receiving the night shift premium."

So the tribunal made a clear finding on the issue of substance that was disputed before them. It followed from that, inevitably, that the second part of the application, namely that there had been an illegal deduction from earnings failed, because the only illegal deduction alleged was the failure to pay the night shift premium.

The Notice of Appeal raises the following grounds:

"6.1 The Industrial Tribunal erred in law in failing to address the Appellant's complaints to the Industrial Tribunal"

I will come back to the intervening grounds, but 6.3.1 says:

"6.3.1. The Industrial Tribunal erred in law in failing to consider separately the Appellants' two applications.

6.3.2 The Industrial Tribunal erred in law in failing to give a declaration as to the Appellant's written terms of conditions particularly with regard to their normal working hours."

Those three grounds, particular 6.1. and 6.3.2. seem to go to what one might describe as a formal complaint as distinct from a complaint of substance - by formal we do not wish to imply any suggestion that it is not a complaint that if made out cannot and should not be made, but we mean that that seems to turn on a submission that when there is an application under Section 11(1), then the Industrial Tribunal must effectively make a declaration as to the relevant particulars which ought to have been but which were not included in a written statement of the terms of employment. For the purpose of this group of grounds, it matters not whether the declaration, had it been made, would have been in favour of the applicants or against them. Their complaint under this ground is that some declaration must be made.

Assuming in their favour, and we think rightly, that where there is simply is no statement by the employer or the written statement does not contain appropriate particulars, then that is true, the question is whether it was established that there was no written statement or that it failed to contain appropriate particulars. We see nothing in the tribunal's reasons or in what we have been told about the material that was before them to justify that conclusion. There plainly were comprehensive documents negotiated between the applicant's union and management, and they included an agreement made in 1993 which contained the provision that the employer would not lay off employees. It does not appear whether that was a comprehensive agreement which wholly replaced what had gone before, or it whether it supplemented what had gone before, but the picture which emerges from the reasons, not surprisingly given the identity of the employer, a large industrial company, and from the fact that there were employees' unions or a union which negotiated a collective agreement, was that the documentation was complete. The real question was not one of a complaint of failure to supply a written statement, but a dispute about what the effect of the contract, as embodied in the documentation, was, and in those circumstances we find that there is no arguable ground upon which the appeal could go forward on what we have called the 'formal complaint' that the tribunal was bound to make some declaration, whatever it was. Moreover, we are bound to reflect that such an appeal would be a totally barren one, because that is not really what the appellants want; what they want is to upset the substance of the tribunal's decision.

We turn therefore to the grounds of appeal in which they attack that substance. In ground 6.2. they state that the Industrial Tribunal "erred in law in stating that:" and then they set out quotations from the Industrial Tribunal's reasons. In ground 7 they state:

"Further or in the alternative, no Industrial Tribunal when properly directing itself upon the findings of fact could have reached the same decision."

That is an allegation of perversity.

The fact is, as we read the Industrial Tribunal's reasons, that they deal at some length with the arguments that quite obviously had occupied the time before them, namely, the substance of the question whether on the contractual terms which were in position between the employers and employees the employers were entitled to transfer the applicants from the night shift to the day shift, and although Mr Freer now says that they were not unilaterally entitled to do so, we cannot actually find any trace that that was a position that was seriously argued before the Industrial Tribunal. Plainly they were entitled to find that the employers were entitled to transfer the applicants from the night shift to the day shift. That followed in fact inevitably from the agreement made between the employers and the union on behalf of the employees, that there would be no laying off. Unless it was maintained - and there is no trace that it was - that the employer was actually bound to continue a night shift regardless of whether there was work for it or not, the only course open to the employer, given the employees' right not to be laid off, when there was such a contraction of work that the shifts could not be maintained, was to reduce the shifts and to transfer the night shift workers to a day shift, if it was the day shifts that were being maintained -as was the perfectly natural and almost inevitable course - or if theoretically it had been done the other way round, and the night shift had been maintained and the day shifts abolished, to transfer the day shift workers to the night shift.

So the tribunal, in our view, not only was entitled to find, but there is no real evidence that they were ever asked to find otherwise, that the employer was entitled to transfer the night shift workers to the day shift.

The question then was whether in doing so they were obliged to continue to pay a night shift premium and that was of course argued before the tribunal. The tribunal came to the conclusion - in the terms I have already quoted - that that was not the case. There were matters before them which they took into account, and which might have been and indeed were used as arguments for the reverse conclusion, but it was a matter for them to find at the end of the day what the situation was, and they found it in the sense which I have stated. Those were matters such as the fact that when there was holiday absence the night shift workers were paid the premium as well as the basic pay and that was also so in the case of sickness absence; that is not in the least bit surprising, one would expect that an employee when off for holiday or for sickness is paid the full amount that would have been paid had he or she continued in his normal employment at the normal time which prevailed before and after the holiday or the sickness.

It also was urged that at first, when transferred to the day shift, for some short period the night shift workers were also paid their premium, but the tribunal took that into account and found that that was simply an ad hoc gesture, and not a reflection of the underlying contractual rights, and that was a matter for them. It seems to us quite impossible to say that they fell into any error of law in that respect.

We therefore find no arguable ground of appeal that the tribunal erred in law in their conclusions that the employers were entitled to transfer the night shift workers to the day shift, and that when doing so, they were entitled to pay them at day shift rates.

There is a third group of grounds of appeal, or perhaps a group of a single member, namely that the Industrial Tribunal erred in law in concluding that it was unnecessary to consider the complaint under the Wages Act 1986. The way in which the tribunal dealt that was to note that the alleged illegal deduction was simply the failure to pay the night shift premium, and to conclude that what they had decided about the right to the night shift premium, or lack of such right, made it inevitable that there had been no illegal deduction from wages, and they so found. So it simply is not true that they considered it unnecessary to consider the complaint; they did and rejected it. That followed, they said, on the face of it rightly, ineluctably from their conclusion on the prior and substantial issue as to the rights of the employers and employees.

Before us Mr Freer has sought to raise a further point in support of that ground, namely that to conclude the state of the contractual rights between employer and employee is not necessarily to conclude the question of illegal deductions under the Wages Act, because he says that there is authority that it may be illegal to deduct from wages some element which, although not the contractual entitlement of the employee, has been one which the employee has a reasonable expectation of receiving.

There is absolutely no trace that any such argument was addressed to the Industrial Tribunal. Mr Freer did not appear for the appellants before the Industrial Tribunal, so he cannot help us. If the appellants sought to take a point such as this, they would have to allege in the absence of any reference to it in the Industrial Tribunal's reasons, that it was argued before the Industrial Tribunal and that the Industrial Tribunal erred in law in not considering it. No such allegation is made, and that ground therefore also fails.

In those circumstances the appeal must be dismissed.