United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S JONES (of Counsel) Instructed By: Engineering Employers Federation Broadway House Tothill Street London SW1H 9NQ
For the Respondent	MR T LINDEN (of Counsel) Instructed By: Messrs Pattinson & Brewer Solicitors 71 Kingsway London WC2B 6ST


 


JUDGE PETER CLARK:

1. This appeal raises a pure point of construction of the terms and conditions under which the six Applicants before the Bristol Employment Tribunal were employed by the Respondent employer.
2. Background

Originally, each Applicant was issued with standard form particulars which, it is accepted, set out the relevant contractual terms. The principal term with which we are concerned is clause 3(d) headed, Hours of Work. It provides:

i) The standard working week is a maximum of 38 hours extending over 5 shifts excluding meal breaks. Certain employees may be contracted to work longer hours and if this applies to you it is noted below (at iii).

ii) You may be required to work any of the patterns shown below as necessary to the Company's needs from time to time.

(and there are then set out in the standard contract, 5 different shift patterns for the working week Monday to Friday, each totalling 38 hours)

iii) In your case you have been contracted to work a basic week of hours to be worked in the following manner.

In cases such as Mr Robinson's where agreement has been reached that he should work 41.25 hours per week, that period was inserted and the nature of the shifts he was to work were then set out.

3. In about 1998 the Respondent introduced weekend working on a trial basis. It was then decided to continue with weekend work and as a result following agreement between the employer and Trade Union, the six Applicants received letters dated 10 November 1998 headed, "Weekend Contract"
4. The opening paragraph in each letter varied between the Applicants. Mr Robinson for example was told:

"Further to my previous letter regarding changes in your weekend contract, this is to clarify and confirm the amendments to your terms and conditions as follows."

In the case of Mr Pearce, the letter opened in this way:

"I would like to confirm your transfer to the weekend shift and the following changes in your terms and conditions of employment."

Thereafter the following 7 numbered paragraphs were in the same form. Clause 1 provided:

"Contractual hours for the weekend shift will reduce to 36.75 hours per week. These will be worked as 12 hour shifts 6.00a.m./p.m. – 6.00 p.m./a.m. on Friday, Saturday and Sunday nights and Saturday, Sunday and Monday days, rotating."

Clause 2 set out the consolidated hourly rates of pay for Grade 1 and Grade 2 workers on days and nights. The hourly rates were greater than the hourly rates paid for equivalent weekday working. Clauses 4 and 6 altered the previous arrangements for respectively holiday entitlement and sick pay. Clause 7 provided:

"All other terms and conditions of employment remain unchanged."

5. The Applicants worked weekend shifts until February 2000, when each was informed by letter that the weekend shift was to be discontinued after the last weekend in that month. They were informed that they would be required thereafter to revert to a weekday 3 shift-rotating pattern. The standard form letter added:

"This change is in accordance with your terms and conditions, which state that you need to be flexible and work whatever shift pattern is necessary to meet production requirements."

6. Mr Jones accepts that the word "flexible" does not appear in any of the contractual documentation. The Applicants transferred to weekday working under protest. They contended that the transfer to weekday working constituted a unilateral variation of their contracts of employment. That contention was resisted by the employer. They presented complaints of unauthorised deductions from wages to the Bristol Tribunal. A Tribunal under the chairmanship of Mr Colin Sara sitting on 20 July 2000 upheld those complaints for the reasons given with a decision promulgated on 2 August 2000. Against that decision the Respondent now appeals.
7. The issue before us is as we have said purely one of construction. The rival contentions are these: Mr Jones submits that the variation agreed in November 1998 is not inconsistent with the retention of clause 3(d)(ii) of the original terms. The provisions for weekend working, whilst it continued, were in addition to, not in substitution for clause 3(d)(ii). Thus the Applicants agreed to the Respondent retaining the contractual right to transfer them back to weekday working if and when required.
8. Mr Linden advances a different construction. He points to the context in which clause 3(d)(ii) is framed. It relates to shift patterns for weekday working only. Thus, as a weekday worker, an employee may be required to work any of the five identified shift patterns. However, the variation effected by agreement in November 1998 was precisely what the letter said at its head, it was a weekend contract. There was provision in clause 1 of the letter for rotating weekend shifts, just as there had been various shift pattern options open to the employer for weekday working. However, the concept of weekday and weekend working were separate and distinct. An employee was bound by the flexibility within the weekday or weekend regime. Not both.
9. Other inconsistencies appear on the face of the letters of 10 November 1998. The weekly hours of work differed from the original contractual provision. The rates of pay differed from the weekday rates. The arrangements for holidays and sick pay also differed from the original contractual terms. These were, he submits, two separate regimes. We accept Mr Linden's submissions.
10. It seems to us that if the Respondent had wished to retain the right to transfer workers between weekend and weekday working, they would have said so. We do not accept Mr Jones' contention that that was the effect of clause 3(d)(ii) coupled with the catchall: "All other terms and conditions of employment remain unchanged."in the November 1998 letters.
11. Whilst there are slight variations in the cases of Messrs Robinson and Adams, we think that the result is the same in all cases. On a proper construction of contracts, as varied in November 1998, the Respondent in our judgment did not retain the contractual right to transfer these Applicants back to weekday working on the terms generally applicable to such working without their consent. These complaints are well founded. The Tribunal was right to so conclude. The appeal is dismissed