United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No appearance


 


JUDGE J. ALTMAN: This is a preliminary hearing in relation to an appeal brought by the Applicant, Miss Martin, from a decision of the Industrial Tribunal sitting at Hull on 15 July 1998. The purpose of this hearing is to determine whether there is a reasonably arguable point of law so as to give the Employment Appeal Tribunal jurisdiction to entertain and determine it at a full hearing.

Though the dates of employment are not clear from the decision of the Tribunal, it appears that the Applicant began her employment on 22 May 1995 and terminated it sometime in January 1998 according to the Tribunal, or on 9 February 1998 according to the Respondents in their Notice of Appearance or the 23 February 1998 according to the Applicant in her Originating Application.

The Applicant made a number of applications following upon her dismissal, but this appeal relates to only one. In her Originating Application the Applicant claimed for unpaid overtime for 10 hours a week, apparently throughout her employment. It is common ground that the Applicant's Contract of Employment provided for a basic salary and the Respondents allege that the Contract provided also for a minimum number of hours of work per week, unrelated to the amount of salary. This seems to be accepted, for the Applicant's case was that whilst she could be expected to work a reasonable number of extra hours without pay, what happened in her case was that her number of hours was so excessive as to give rise to an argument that there was an entitlement to be paid on a quantum merit basis and that it was unconscionable that the working of such excessive overtime would be on a voluntary basis.

The Applicant complains that the Industrial Tribunal did not address its mind to this issue. In the Notice of Appeal it is stated that the evidence showed that the Appellant:

"required to work excessively long working hours at no extra pay. It is claimed that the Tribunal was wrong in law in failing to infer from this evidence that the quantity and frequency of the excess hours were such as to compel the existence of a contract of obligation on the part of the Appellant to work such hours and the Respondent to pay her appropriately for such hours, the extent of the said hour's far exceeding the popular conception of regular unpaid overtime performed by many employees who never actually expect to receive payment. The Appellant would say that the popular concept of working over after normal working hours without pay cannot be used to justify non-payment where the overtime involved becomes excessively lengthy."

In the decision of the Industrial Tribunal, this was dealt with in paragraph 3(c) in the following terms:

"The Tribunal also considered at the outset the claims the applicant has made for additional holiday pay and overtime pay. The applicant was provided with a letter of appointment, which she signed and accepted, and also with a statement of terms and conditions of employment. Both of these documents specified a salaried rate and did not make provision for payment of overtime or indeed, for any hourly rate to be applied to the applicant's payments. The Tribunal noted that the applicant was paid throughout her employment at the salaried rate quoted and therefore, did not accept that there was any agreement for additional payments for overtime or for other rates to be used for holiday pay or for notice pay, as claimed by the applicant. The Tribunal accordingly dismissed those claims."

The Tribunal clearly considered the question as to whether or not there was a term of the Applicant's Contract of Employment, either initially or during her employment, for payment on account of overtime work and, on the evidence before them, the Tribunal came to the conclusion to which it was entitled to come that there was no such term. Indeed, it appears to have been common ground.

It is true, that the reasons of the Tribunal on this issue were expressed cursorily, but it is quite clear that they looked at the facts of the contract itself and they referred specifically to those facts from which an implied term would normally be inferred if one existed. That is to say, the Tribunal looked at the period of employment of the Applicant and noted that there were no payments that could have been regarded as customary or traditional or made at any time from which an inference could be drawn that there was an obligation to make such payments.

Accordingly there can not be any complaint that the Tribunal failed to consider whether there should be implied into the contract a term to pay for excessive overtime. The only remaining matter therefore is the ground of appeal which seems to argue that there should be found to exist some obligation as to between an employer and employee which stands outside the contract of employment, but which is based upon the proposition that it would be unconscionable that working of excessive overtime should be on a voluntary basis. This only applies where it is excessive and not usual or habitual.

It is recognised in the skeleton argument that there is no authority to support this proposition, but that should not prove or prevent our finding an arguable point of law. They then raised two issues of fact, first of all there was no finding of fact as to whether the hours worked were excessive, and such a finding would be unnecessary of course, unless the Appellant was correct that she was entitled to be paid for such hours and there is then a reference to the transfer of work from Bridlington to Eaton Park and whether or not they were in fact transferred which stands outside the narrow point that we have to consider.

The facts found by the Tribunal and principles of law make the arguments on this appeal completely untenable. This claim was made for the first time after termination of employment. During the employment there could be no argument other than that by working the way she did and receiving the pay she did, the Applicant was accepting the terms of her contract of employment. It may be that when her employment came to an end, and in view of the way it came to an end, the Applicant felt, possibly with some justification, that she was unappreciated and it may be that she regretted with hindsight that she had, in her eyes, given her "all" to her employment, but the Industrial Tribunal had to consider the entitlement, in law, to overtime pay in contractual terms.

There is no basis for arguing, it seems to us, that after an employee terminates his or her employment, she or he can complain that there were particular terms of the employment which were inadequate and that she should be paid on some other basis for what happened during the course of her employment. Of course, if an employer acts in any way oppressively by forcing someone to work in a way they do not wish to do, or by forcing the employee to work more overtime or any overtime when the employee does not wish to do so, that in itself may be a breach of contract, entitling the employee to leave and seek compensation for so doing, but that is not what happened here. Here the employee remained in employment and it seems to us that whilst remaining in employment and under the terms of the contract, once the employment comes to an end, the employee cannot turn round, and then as it were, eat the plums of her employment contract and try to reject its duff, and pick and choose the terms which he or she wishes to rely upon, and introduce "ex post facto" new arrangements which never figured in it. That is, it seems to us, what the Notice of Appeal seeks to do in this case.

The Applicant remained in employment and whilst she did, she was clearly bound by the terms of the contract which she freely entered into at the beginning. If she now regrets having worked overtime to the extent she did, then that is simply attributable to the fact that during the course of her employment she appears to have acted with good will, but it is not a matter that falls to be enforced by way of contractual breach, quantum meruit, unconscionable bargain or any other principle that we can think of and we have no doubt that it is for that reason that there is no authority on the point whatsoever, in spite of the vast amount of litigation that there has been over every legitimate aspect of employment law over the years.

Accordingly we are driven to the conclusion that there is no arguable point of law in this appeal and this appeal must be dismissed at this stage.