United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D BARRETT (of Counsel) Messrs Beers Solicitors 69 Fore Street Kingsbridge Devon TQ7 1AA


 


HIS HONOUR JUDGE J R REID QC

1. This is a Preliminary Hearing on an appeal by the Respondents below, Capital Security, against a decision of Mr A J Simpson, the Chairman, sitting alone at Manchester on 5 February 2001. By that decision, Mr Simpson determined in favour of Mr Baldwin, the Applicant below and the Respondent here, that his normal working hours were 59½ hours in one week and 61 in the other week producing an average of 60¼ hours.
2. Against that decision the Appellants, Capital Security, now appeal. They say that for the purposes of holiday pay under working time regulations the number of normal working hours was 48. In support of that we have been referred by counsel to the Employment Rights Act 1996, which provides at Section 234 as follows:

"(1) Where an employee is entitled to overtime pay when employed for more than a fixed number of hours in a week or other period, there are for the purposes of this Act normal working hours in his case.

(2) Subject to subsection (3), the normal working hours in such a case are the fixed number of hours."

It then goes on to subsection (3), which is not material for our purposes.

3. It is said that the terms of Mr Baldwin's contract of employment meant that 48 hours were his normal working hours. The relevant passage from that contract of employment is in these terms:

"7 NORMAL HOURS OF WORK

7.1 Owing to the nature of the security industry, all employees will be expected to work various hours and shifts including days, nights, weekends and Public Holidays."

For reasons which are unexplained there is no 7.2, but 7.3 provides:

"7.3 All employees will be expected to work reasonable additional hours when requested to do so by the Management.

7.4 The standard shift pattern is forty eight hours over a six day period. However, owing to exigencies and peculiarities of individual assignments, the standard shift pattern may be more or less than forty eight hours."

The argument advanced by the employers is that that means that 48 hours are the normal hours of work and that anything done over and above that is overtime and so to be excluded for the purpose of calculating holiday pay. It is said that the hours between 48 and 59½ or 61 that were worked by Mr Baldwin each fortnight were hours of overtime.

4. That argument was not found acceptable by the Chairman who considered the written representations and the contents of the Notice of Appearance which had been put in by Capital Security, although it was not in fact represented in person before him.
5. In our judgment he was entirely right to hold as he did. The terms of 7.4 are clear. The standard shift pattern is 48 hours over a six day period, however, owing to exigencies and peculiarities of individual assignments the standard shift pattern may be more or less than 48 hours. In this case owing to the exigencies and peculiarities of the individual assignment on which Mr Baldwin was employed the standard shift pattern amounted to 61 hours in one week and 59½ hours in the other week, and his normal hours of work were those hours. There was no question of him working overtime.
6. The suggestion that all the hours between 48 and round about 60 were hours that he was expected to work when requested to do so by the management under 7.3 and therefore overtime, seems to us to be misconceived. That paragraph is clearly intended to deal with the situation where something arises which causes the management to request an employee to do some further hours. It is not intended to, and does not cover, the situation where the standard shift pattern for a particular assignment is in excess of 48 hours.
7. It follows that we take the view that that there is no arguable point which would go to a Full Hearing and we will dismiss the appeal here and now.