United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D IBEKWE (Representative) PTSC 31b Mervan Road Brixton London SW2 1DP


 


JUDGE COLIN SMITH QC: This is an application by Mr Bridge who was the applicant before the Employment Tribunal for leave to proceed to a full hearing of an appeal against a decision of an Employment Tribunal held at London (South) on 10th June and 25th August 1999 of which extended reasons were sent to the parties on 8th September 1999, whereby the Employment Tribunal held unanimously that the respondents, London General Transport Services Ltd, did not make unlawful deductions from the appellant's wages contrary to section 13 of the Employment Rights Act 1996.

1. We have had the benefit of submission from Mr Ibekwe on behalf of the appellant and he has put in a skeleton argument, which we have considered. We have reminded ourselves that the appellant must show an arguable ground of appeal, based on an error of law, in order to proceed to a full hearing.
2. As appears from the findings of the Employment Tribunal the appellant had been employed by the respondents as a bus conductor for a long time from September 1969. Proceedings concerned the admitted fact that he had not been paid wages for Saturday, 26th December and, indeed, for Thursday, 31st December 1998 and Friday, 1st January 1999.
3. It was the respondents' case that because the appellant had failed to work on 31st December 1998, as they submitted he was obliged to do in the events that happened, he was not entitled to be paid for that day or the following day, as the following day was a Bank Holiday, pursuant to an agreement that had been reached.
4. The respondents' case was that they were entitled to change the rosters over the Christmas and New Year period and had done so in accordance with longstanding custom; alternatively, in accordance with a specific agreement reached between management and the trade union involved, TGWU, made at the beginning of December 1998, which had the result that the appellant's rest day was changed to 26th December 1998 from 31st December 1998.
5. The Employment Tribunal found facts which supported the respondents' case. They found that by the original roster which covered some 67 weeks the appellant was to have a rest day on 31st December 1998 and he was to work on 26th December 1998, Boxing Day. However, they found that this was varied at the beginning of December 1998 when a notice was posted in the depot by management pursuant to the agreement reached with the union, on the findings of the tribunal, to the effect that 26th December 1998 was to be a rest day and 31st December 1998 was to be changed to a working day.
6. The Employment Tribunal found as a fact, contrary to the evidence given by the appellant, that he had seen and understood that notice at the time when it was posted in the depot. The Employment Tribunal found that changes had been made to rosters for the last 30 years, especially over the Christmas period and it was the custom and practice within the depot for temporary rosters to be introduced over the Christmas period.
7. The Employment Tribunal found that the respondents had in any event obtained the express agreement of the TGWU in late November or early December 1998 to the varied arrangements contained in the notice, which they then posted at the beginning of December 1998. There was evidence to this effect from Mr Johnson which the Employment Tribunal accepted. The Employment Tribunal found that it was only the appellant who questioned the right of the respondents to vary his rest day.
8. The appellant did not attend for work on 26th December or 31st December and accordingly was not paid for those days or for 1st January 1999, which was a Bank Holiday following 31st December 1998.
9. The Employment Tribunal held that the variation lawfully became part of his contract either in accordance with the custom, which they found proved, and/or in accordance with the specific agreement with the union and that the effect of the lawful variation had been notified in writing to the appellant on an occasion prior to the deduction when the notice was put up on the depot notice board and read and understood by the appellant at the beginning of December 1998.
10. The Employment Tribunal found that the appellant was employed in accordance with the terms of any agreements from time to time made with the TGWU as to conditions of service. The tribunal accepted that an agreement had been reached and operated over many years with the TGWU that the respondents would be entitled to vary rosters during the Christmas/New Year period so as to be able to provide the appropriate services and that there had been a specific agreement made to that effect.
11. Accordingly, it was in those circumstances that the Employment Tribunal concluded that the claim should fail.
12. Against that background we have listened to the arguments addressed to us by Mr Ibekwe. We are satisfied that it is not arguable that first of all the Employment Tribunal erred in any way in relation to the adequacy of the notice. In our judgment there is no requirement for a notice of this kind to be given personally to the employees concerned. In our judgment, in circumstances as they were found to be here, where there is a custom and practice agreed that rosters can be varied and there is an agreement to that effect and where there is a specific agreement between the union and the management that rosters are to be varied in a particular way, it is sufficient notice, within section 13(2)(b) of the 1996 Act, for a written notice confirming the arrangements to have been posted in the depot where the appellant works in circumstances where it has seen and understood by the appellant. That, in our judgment, is a sufficient written notice within section 13(2)(b) of the 1996 Act. So that we do not think that there is any point of law arising from that finding. We do accept that it appears that there was no written evidence in support of the agreement that had been reached between Mr Johnson and the trade union, but, in our judgment, there was proper written notice given in one of two ways either because there clearly was a written arrangement over the many years that rosters could be varied over the Christmas season and all that was happening here was the operation of what had already been agreed; or, alternatively, as the Employment Tribunal found, sufficient written notice was given when the notice was posted up on the depot notice board and was seen and read by the appellant.
13. In our judgment, it would be very surprising indeed if a public service employer or someone in a similar position to a public service employer, a large employer, was required to give individual written notice of arrangements to vary rosters over a Christmas period. In our judgment, it is the industrial reality that provided proper agreement are in place between union and management, notice can be given in the way it was given here. We construe section 13(2)(b) in that way and we find no arguable ground for complaint in the way in which the Employment Tribunal dealt with the matter.
14. An alternative argument was addressed to us along the lines that there was some kind of breach here of the implied duty of trust and confidence, but no such argument was sufficiently developed before the Employment Tribunal and we cannot allow that matter to be argued now.
15. It may be, as Mr Ibekwe said, that there were some underlying motive for management setting up or seeking to set up the rosters they did over this particular holiday period by reason of the fact that Boxing Day was not a Bank Holiday and there may have been financial advantages to the employers in seeking to vary the rosters as they did, but in our judgment again that was a matter which no doubt was taken up with the TGWU at the appropriate time and in any event there was no effort made before the tribunal to establish that in some way the employers were acting in bad faith. Accordingly, we cannot allow any argument now along those lines to proceed to a full hearing.
16. Finally, there was a suggestion that because the appellant, understandably, had made family arrangements for 31st December it was an error of law for the Employment Tribunal to find that he should have attended work on that date. We understand what is being said there, but in our judgment once the rosters were changed and changed in accordance with the contract and once the appellant had notice of that, which on the findings of the tribunal he did very shortly after the notice had been put up in the depot, then the priority must be that he is to work on the day when he is required to work, even if he has to upset family arrangements that otherwise would have taken place. We can see nothing wrong therefore with the way in which the Employment Tribunal dealt with that particular aspect of the matter.
17. For those reasons we have concluded that there is no arguable point of law here. This application will have to be dismissed.