United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R BLOOMFIELD (of Counsel) Messrs Graham Bash & Co Solicitors 26 Wattisfield Road London E5 9QH
For the Respondents	MR P K THOMPSON (Solicitor) Messrs Dibb Lupton Alsop Solicitors Windsor House Temple Row Birmingham B2 5LF


 


MR JUSTICE HOLLAND: Mr Rupert Wagstaffe has been employed by Selfridges as a sales assistant since 1971. The contract under which he is employed appears from page 9 of the bundle that was put before the Industrial Tribunal. That provides for a working week of not more than 40 hours and it includes the terms "overtime or shift work is payable at the rate laid down in the current appropriate agreement or working rules". It would seem that every year in about April the salary levels would be reviewed in accordance with the current prevailing economic conditions.

Turning then to the matters that give rise to this appeal, as we can best discern them on the information presently put before us, the following elements serve to explain the issue. For the year beginning 1 April 1997 Selfridges were keen to put into operation a new rota arrangement, in part to deal with the problem of Sunday working. To that end there were negotiations between Selfridges and the Union, USDAW. That appears to have produced a sophisticated arrangement to deal with the problems that arose from moving from a six-day week to a seven-day week.

Amongst the provisions agreed with the Union, was that those who accepted the new rota and contract were to receive an 8% pay rise, being as to 3% an annual inflationary pay rise and as to 5% a Sunday rota supplement. At page 5 in the bundle that was before the Tribunal there is part of the rota arrangement, as circulated to the workforce, and it includes the following:

"What if I cannot work Sundays?

The Sunday Trading Act gives you the right not to work Sundays. If you choose not to work Sundays you will only receive the inflationary pay rise of 3% on your salary. You will have to adopt a similar rota to the one shown, but the hours you would have worked on Sunday will be added back in the week.

Can I change my mind about Sunday work?

Yes. You have the right to change your mind. You must give three months' notice in writing to your Manager that you wish to change. You will then revert to the non-Sunday joiners rota and your salary will be reduced by 5%.

What if I don't want to change my current rota?

All employees will be expected to change to the new rota. In exceptional cases special consideration may be given to any employee who, for personal reasons, needs to work on their existing rota or who needs a period of time to adjust to the new rota. Exceptions will only be authorised by the Store General Manager and/or the Store Human Resources Manager."

Turning then to Mr Wagstaffe's problem it seems, as we currently understand it, to have arisen as follows. First, he was unwilling to accept the new rota. Second, he at about the same time, appears to have transferred from membership of USDAW to membership of the TGWU. Turning to the end result of the new arrangement, the current categories of employees of Selfridges are as follows.

First, there are those, no doubt in a majority, who have signed and accepted the new rota contract and who thus, as from 1 April 1997, received a pay rise of 8%.

Second, there are those who would not normally have worked on a Sunday at all and who therefore are ineligible for the Sunday rota supplement, but who have since 1 April 1997 enjoyed the annual inflationary pay rise of 3%.

The third category appears to be those who have not agreed to the new rota, but have been acknowledged as an exception by authorisation by the Store General Manager, further, or alternatively, the Store Human Resources Manager. Those persons, so far as we understand it, received 3% only.

Finally, there is the category which certainly includes Mr Wagstaffe and, for all we know, other employees who have not accepted the new rota and contract and who thus far do not come into the category of the authorised exception. That is, that their desire to be excluded from the rota has not yet been authorised. This category has so far received no April 1997 pay rise.

In Mr Wagstaffe's case (and again, possibly in the case of other employees, we know not) this state of affairs arises, in part, because Selfridges do not accord negotiating rights to TGWU. Thus, the representation that seemingly they have been prepared to listen to from USDAW, has not in his case been accepted.

With that introduction we turn to the present proceedings, started by way of an IT1 dated 12 February 1998. Mr Wagstaffe complained to the Industrial Tribunal in terms:

"Whether my employer has made an unauthorised deduction from my wages in contravention of s 13(1) (or s 18 (1)) of the Employment Rights Act 1996."

Giving details of his complaint, he introduces the topic, as so far set out in this judgment, but then concludes:

"Because I was unable to resolve this matter I requested my trade union officer, Mr T. Reddy, to assist me in this matter. Mr Reddy wrote to the company on two occasions for a meeting to discuss my outstanding payment of 3%. Selfridges, however, have declined to discuss this with Mr Reddy, leaving me with no other avenue to resolve my problem.

The company are saying they will not pay me that increase until I sign a new contract. This has not been demanded of other employees who are in receipt of the 3% inflationary increase.

I would therefore request the Tribunal to assist me to overcome this matter as Selfridges are paying me 3% short of my salary every week."

The matter came before an Industrial Tribunal sitting at London (North) on 15 April 1998. The first feature to which we draw attention is that the Tribunal was constituted by the Chairman sitting alone. We know not why that arrangement was made. It would seem, having regard to the issues involved, a matter for regret. Even more a matter for regret is the way in which he dealt with this matter by way of what he calls "Extended Reasons". We put the matter thus because the reasons as given by him are so terse as to be of no value to either party, nor this Tribunal.

In setting out the facts of the matter, "as we understand them to be at the moment", we have had to introduce that reservation because there are no findings of fact that we can recite in the judgment of this Tribunal. He appears to have regarded the problem as being entirely a matter of construing the express terms of Mr Wagstaffe's contract. He has in no way applied his mind to the matter of implied terms, nor has he sought to apply his mind, at least so as to make specific findings to, for example, Mr Wagstaffe's point that others in the same or a like position are receiving this inflationary increase so as to make it unconscionable to refuse it to him. In dealing with the matter on his very limited basis, he concluded thus:

"3. I have found that, there is no contractual obligation on the part of the Respondents to pay 3%, or any other sum, to the Applicant by way of bonus or increase. There has been no breach of contract; the old contract continues. The Applicant's claim for payment of unpaid wages fails and is dismissed accordingly."

On behalf of Mr Wagstaffe, Mr Bloomfield submits that these conclusions are open to challenge so that a question of law arises. He has various points to raise. In particular he points to the lack of any finding as to implied terms and the lack of any attempt to look at this issue as a practical one, in which the state of the contract is no more than a factor.

In a very measured and helpful response, Mr Thompson on behalf of Selfridges, reluctantly concedes that the state of the Extended Reasons is such as to make effective argument of an appeal possible. He, of course, submits that ultimately the Chairman got the right answer, but I think he would concede that it is not easy to discern an adequate line of reasoning that would serve to reject the criticisms of Mr Bloomfield.

Thus it is that both sides reluctantly are of the view that this matter will have to go back for a re-hearing before a differently constituted Tribunal and this time we emphasise: a Tribunal consisting of the usual Chairman and two members.

For our part we have no hesitation in saying that this appeal must be allowed and the matter must go back for that hearing. We gain no pleasure from making that finding, but it is plainly quite impossible for us to do justice to the issues in this case, given the paucity of factual material that is presently put before us.

In a moment we will review with the parties as to whether any further directions are needed to prepare for that re-hearing, but we would like to draw attention to the last paragraph of the Extended Reasons. This reads:

"4. Before parting with this case, it is common ground that the Applicant has always been a loyal employee for something like 17 years. It has always been, and still is, open to Mr Reddy on his behalf and the Respondents to agree some terms which would be mutually beneficial to the parties. It is my hope that progress will be made along those lines and I have so indicated to those representing the parties."

We have two comments. The first is that for "17 years" substitute "27 years". The second is that there may well be that there are problems which confront Selfridges in discussing this issue with a representative of the TGWU given the existence of their agreements with USDAW. That said, Mr Wagstaffe now has the advantage of legal representation and it would be nice to think that with this fresh champion of his interests, some attempt can be made to try to sort this matter out on a basis satisfactory to both sides. It seemed quite extraordinary to the Industrial Tribunal and it seems quite extraordinary to this Tribunal that a long-serving and very loyal employee such as this cannot have the problems arising out of this new rota sorted out. The matter becomes even more one for comment if, as we gather, he was paid an inflationary increase for the year beginning April 1998. It may be that that was calculated on 1996 figures. On the face of it, it should not take a great deal of movement to try to resolve the financial implications for 1997 and any knock-on implications for ensuing years and it should not be surely, very difficult to try to work out how best to deal with this particular employee.

If there are other employees in the same position that one would have thought would have simply added impetus to getting this matter sorted out. Maybe that it cannot be done, in which event the re-hearing will no doubt address itself to those issues. He now has the endorsement of this Tribunal of the helpful approach of the Industrial Tribunal to trying to resolve this matter so as to maintain a good relationship that has lasted for all these years.