United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR S CROSS (Ref - STC/GMB/A98N0349) Solicitor Messrs Thompsons Solicitors Percy House Percy Street Newcastle Upon Tyne NE1 4QW


 


THE HONOURABLE MR JUSTICE LINDSAY: There was a hearing before the Industrial Tribunal in Newcastle Upon Tyne on 13 July and further deliberations on 6 August that led to a full decision promulgated on 26 August. The unanimous decision of the Tribunal was "that the terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours) of the Applicants for the purposes of Section 1 of the ERA 1996 are in each case 39 hours per week from 8am to 5pm working Monday to Saturday with one free day but that each employee may be required to work up to 6 hours overtime paid at overtime rates and not guaranteed."

We have heard Mr Cross and he has persuaded us that there is a serious point of law with possible ramifications going beyond the parties themselves, namely whether, for the purposes of Section 234 of the 1996 Act, hours are to be regarded as "fixed" and therefore as normal working hours within Section 234(2) if, although habitually required by the employer to be worked by the employee, they are not "guaranteed", whatever guaranteed may mean in this context. "Guaranteed" is not a word used in Section 234 but it is, however, used throughout the extended reasons of the Industrial Tribunal, for example in paragraph 6(d), paragraph 10 and paragraph 12.

Moreover, that the hours do not need to be "guaranteed" is arguably a consequence of the words in parenthesis in Section 234(3)(a), namely "(whether or not it also provides for the reduction of that number or minimum in certain circumstances)." So here we think there is arguably an error of law - it is only arguable - that is all we need to be concerned with at this stage - in that what the Industrial Tribunal was looking to was not what was "fixed", but rather to what was "guaranteed" and that the two concepts may differ. Mr Cross says that there will be need to revisit the Tarmac, the Lotus and Mustard cases and we see that that may well be necessary, indeed desirable.

Moreover, there is a mystifying reference by the Industrial Tribunal that the hours 8am to 5pm, five days a week , equal 39 hours. Both Mr Cowan and Mr Morris, sitting with me, indicate from their experience that at any rate to knock off one hour in respect of an early return home on Friday is not at all uncommon but Mr Cross points out that there may be further complications in relation to lunch hours.

There are here, in other words, serious points of law and the matter should go to a full hearing. If Category A is the top category, it should be Category A. I have not asked Mr Cross about time but I would have thought half a day would be an appropriate time, especially if the authorities mentioned need to be reviewed. It will be desirable that there should be samples of the contracts of employment put before the EAT. The Appellants and Respondents should seek to agree a common bundle of documents to be laid in front of the EAT. If a common bundle cannot be agreed, then at least 10 days before the hearing each separate party should produce and exchange his own separate bundle of documents. Plainly, it is much more desirable that there should be an agreed bundle. Skeleton arguments should be exchanged not less than 7 days before the hearing and the EAT should be supplied with those skeletons not less than 7 days before the hearing.

Subject to those observations and directions, we simply direct the matter to go to a full hearing.