United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELANT IN PERSON


 


MR JUSTICE KEENE: This is a preliminary hearing of an appeal against a decision of an Employment Tribunal sitting at Reading and entered on the Register on 22nd February 2000. The Employment Tribunal unanimously dismissed the appellant's complaint.

1. It is clear that the tribunal had some initial difficulty in deciding what the appellant's complaint concerned. In his Originating Application Mr Rowe had identified it by the words "Equal Pay Act 1970; Harassment". In the details of his complaint he stated as follows:

"Over the last three years, management have been trying to force me to work overtime, and over the last 18 months it has got worse, and pay increases have been used to punish me, as I do the same work on the other shift.

It does state in terms of employment, that employees are expected to work extra hours, but the managing director at a meeting agreed that overtime is asked of the worker, and if they want to work they do, and if not, they decline the offer, without it being used against them."

2. The tribunal in its extended reasons noted that Mr Rowe was still employed by the respondents; in other words, he had not been dismissed or constructively dismissed. It then said this:

"1. … He brings a claim under the contract jurisdiction of the Tribunal. Having spent some time this morning exploring the issues we have agreed that the claim is confined to the difference between what the Applicant was paid for the months of January to March 1999 and the sum which he says should have been paid to him for that period. …"

It referred to the appellant's contract of employment, a term of which stated that:

"Employees are expected to undertake extra hours as necessary from time to time as dictated by circumstances."

It then went on to record that Mr Rowe's pay had been reviewed in January 1999 and that at that stage he had been informed that he would receive no pay increase. There was then some exchange of correspondence and it became clear from a letter in late February 1999 that the management's reason for denying any increase of pay was that an adverse opinion had been formed as to Mr Rowe's performance during the preceeding year. Attention in particular was drawn to what was regarded as a lack of flexibility when it came to working overtime and to failures in communication with other members of Mr Rowe's team. The tribunal accepted that the appellant had demonstrated much less willingness to be flexible in the matter of working hours and the working of overtime than most of his colleagues. In its conclusions the tribunal found that that there was no breach of an implied term of mutual trust and confidence because the company's judgments about the appellant's performance were not arbitrary or capricious. Consequently, they dismissed his claim.

3. Mr Rowe in his Notice of Appeal contends that his application was not about a contractual matter but about harassment at work as his Originating Application had stated. This morning he has pursued the same theme with us in a concise and courteous manner.
4. We, ourselves, have sought to explore with the appellant the basis of his complaint and what remedy it was that he was truly seeking from the Employment Tribunal. Having done that, we are bound to say that we can understand why it was that the tribunal below approached this matter in the way that it did. It is of course possible that the appellant might, theoretically, have had a claim of victimisation under section 45 A of the Employment Rights Act 1996 if the respondent company had been asking him to work hours in excess of the Working Time Regulations 1998. But those Regulations generally impose a maximum of 48 hours a weeks and Mr Rowe's Originating Application indicates that his basic hours were 40¼ hours per week. There was no evidence put before the Employment Tribunal of any breach of those Regulations. Other than that, there was no possibility on the facts of a complaint being made out of victimisation on any of the grounds recognised by the law.
5. In those circumstances, the Employment Tribunal was doing the best it could to formulate Mr Rowe's grievance in such a way that there was a complaint which it could properly consider. Hence the manner in which it approached this particular matter. The Employment Tribunal does not have some general jurisdiction over the totality of relationships between employers and employees. It has a jurisdiction to operate on certain defined legal grounds and in certain precise legal contexts. There is no role for the Employment Tribunal, generally, simply to deal with problems, even if they are termed harassment, between employer and employee.
6. Consequently, it seems to us that the way in which the tribunal approached this matter was a proper one. We can find nothing wrong in law in the decision which the tribunal reached or the extended reasons which it gave for arriving at that decision.
7. In consequence, we find that there is no arguable point of law in this appeal and it must follow that this appeal is dismissed.