United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J BOWERS QC (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR COMMISSIONER HOWELL QC:

1. In this appeal which is before us today for Preliminary hearing Mr Anthony John Thompson seeks to have set aside as erroneous in law the decision of the Hull Employment Tribunal set out in Extended Reasons sent to the parties on 7 August 2000 after a hearing on 21 July 2000. The proceedings before the Tribunal were by way of Mr Thompson's originating application claiming unfair dismissal from his employment with a firm known as Engineering & Welding Supplies Limited where he had been working for over 11 years from 4 January 1990 until his dismissal on 28 February 2000. He was employed in various capacities over that time but at the material time according to the findings by the Tribunal, he was employed as a heavy goods vehicle driver/labourer in the Grimsby branch of the firm, where there was a yard with drivers driving four-wheel drive vehicles, pick up wagons and trailers. The Respondent's business was that of the sale of engineering and welding equipment, and industrial and LPG gases.
2. The proceedings, and the termination of Mr Thompson's employment, arose out of a dispute which had come to a head between him and his employers over the hours he was to work. Mr Thompson is married and his wife also works, and they have a small child. In order to enable his wife to continue working to maintain their incomes, Mr Thompson found it necessary to go home promptly at 5 o'clock every afternoon in order to hold the fort at home while his wife was still out working. In order to make up his regular hours, he had found it convenient, and had been allowed by his employers earlier, to begin work at 6.30 in the morning in the yard, even though there were no other employees around in the yard at that time since the normal commencement time was 7 o'clock. The dispute went to the point of Mr Thompson taking his employers to the Employment Tribunal on a previous application, and on 6 October 1999, it was decided by the Tribunal that his contractual hours were indeed 6.30am to 5pm Monday to Friday, of which 8am to 5pm were normal hours and the remainder were payable at the overtime rate of time and a half.
3. This determination caused a reconsideration by the employers of the hours that all of the employees in the yard worked, and the provision of written terms of employment to them all, the previous arrangements being in some disarray. The revised terms put forward to all the employees, and accepted by everyone except Mr Thompson, were as the Tribunal found for a normal working day, paid at basic rates of 8am to 5pm; but according to the Tribunal's findings, with the overtime position unchanged, except that Mr Thompson would only be able to start work at 7am instead of 6.30am as previously so that he would have to work on beyond 5 o'clock if he was to maintain his previous overtime earnings.
4. The Tribunal considered Mr Thompson's complaint of unfair dismissal and rejected it, on the grounds that the employers wish to regularise the working hours of all the employees in the yard was a reasonable one and that Mr Thompson's dismissal for refusing to accept the new standardised arrangements was a dismissal for "some other substantial reason", justified under Section 98 (1) (b) of the Employment Rights Act 1996. Mr Thompson was dissatisfied with that decision and by his own notice of appeal dated 13 September 2000, sought to bring an appeal before this Tribunal on the ground that the Employment Tribunal had failed to take account of the fact that the working hours proposed under the new arrangement involved him being expected to work in excess of 48 hours per week in contravention of the working time regulations.
5. On the hearing before us today, Mr Bowers who very helpfully appeared on behalf of Mr Thompson under the ELAAS scheme has to some extent, reformulated the proposed grounds of appeal, in particular by reference to a document containing revised terms of employment dated 14 February 2000, which Mr Bowers has confirmed to us on express instructions from Mr Thompson who was there at the Tribunal was a document before the Tribunal in evidence and was the subject of submissions made to the Tribunal. Mr Bowers, by reference to that document seeks that an appeal should be pursued on Mr Thompson's behalf on the additional ground that if that document was before the Tribunal, the Tribunal erred in law in particular in failing to have regard to the express terms of that document. These as we have seen require in paragraph 4(1), the employee to work an average 49 hour week split into 4 weekday shifts of some 9½ hours plus a Saturday morning shift. In addition they contain an express requirement to work flexible shifts on weekdays between the hours of 6am and 8pm; and also a provision that the normal weekday shift would start at 7am and finish at 5.30pm except on Fridays: so that the express terms of that agreement were to some extent contrary to the terms referred to by the Tribunal in the findings of fact set out in paragraph 2 of the Extended Reasons.
6. Mr Bowers has satisfied us that, on the basis of what he has told us as to that document having been before the Tribunal, there are arguable grounds for contending that the Tribunal erred in law in failing to take account of and make findings effect on its express provisions. Accordingly we will direct that the appeal should go forward to a full hearing of Employment Appeal Tribunal on the issues of whether the Tribunal erred in law in relation to:

1. The requirement to work flexible shifts between 6am and 8pm

2. The requirement to work normal weekday shifts ending at 5.30pm and not 5pm.

3. The requirement to work an average 49 hour week that being in excess of the maximum 48 hours for employment as a driver/labourer (which according to the express findings of the Tribunal recorded in paragraph 2 (a) of their Extended Reasons and the express terms of that document at paragraph 2.1, was the capacity in which Mr Thompson was employed).

7. We were not satisfied that there was an arguable ground in the further issue Mr Bowers sought to have added to the proceedings, that the Tribunal had erred by failing to carry out a proper "balancing exercise" comparing the disadvantage to Mr Thompson as employee in having to accept the standardised proposals, against the advantages for the employers in having standardised working hours for all their employees. It appears to us that the Tribunal were justified in thinking that the employers' attempt to regularise the working hours of all employees was capable of being a reason with Section 98(1) (b) as "some other substantial reason" for the dismissal of a dissentient employee. Their references in paragraph 2(h) to Mr Thompson's attitude to changing his working hours and asking his wife to make other arrangements, and what they said in paragraphs 3 and 4 in expressing their conclusions, appear to us to show that the Tribunal were quite properly carrying out a balancing exercise between employer and employee such as to justify their conclusion on "some other substantial reason" under Section 98 (1) (b).

7. Accordingly, that not having been in the original Notice of Appeal at all, we do not grant any leave to amend the Notice of Appeal to raise that issue. On the other hand we will give leave to Mr Thompson to amend the Notice of Appeal to raise the three previous issues that we have identified. We will direct that the case should go forward for a full hearing of the Employment Appeal Tribunal on those three issues to be listed in Category C with a time estimate of half a day. We will direct that the Chairman should be asked to produce his notes of evidence about the new terms proposed and in particular the document of 14 February 2000, setting out revised terms and conditions which has been produced before us; and for the sake of completeness, we will direct that that document be added to the appeal file so that there is no misunderstanding. The amended Notice of Appeal is to be lodged by Mr Thompson within 14 days of today.