At the Tribunal | |
On 11 March 2002 | |
Before
HIS HONOUR JUDGE PETER CLARK
MRS D M PALMER
MR H SINGH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR ADRIAN CRAWFORD (Solicitor) DMH Solicitors 40 High Street Crawley West Sussex RH10 1BW |
For the Respondent | MR NICHOLAS TOMS (of Counsel) Instructed By: The Legal Dept USDAW Oakley 188 Wilmslow Road Fallowfield Manchester M14 6LJ |
JUDGE PETER CLARK:
(1) the applicant's claim for unlawful deductions from wages in respect of unpaid overtime succeeded, as did
(2) the respondent's counter-claim in respect of the cost of the applicant's private telephone calls to South Africa.
Factual background
By clause 3: "The hours the Manager is required to work are such times including Sundays as may be necessary to ensure the efficient conduct of the business of said branch within the trading parameters of the business …"
By clause 5: "The remuneration of the Manager shall be in accordance with the rates and terms set out by letter on branch appointment. Overtime rates shall be payable only if the overtime is specifically authorised in writing by the Company or its authorised Representatives. 25% of said remuneration shall be deemed to be in respect of Sunday working."
1 Absence of cover, so that she had had no leave since May 1998.
2 She was not prepared to work a 13 hour day.
3 She was expected to pay £160 for her phone calls, which she felt was insulting after all the hours she worked overtime without a "thank you" or compensation.
4 The failure to provide her with free accommodation prior to October 1998.
The Tribunal Decision
The tribunal found that the respondent was well aware of the long hours worked by the applicant, and that Mr Drew's letter of 15 November 1999 was "paying lip service to the position – they were content that the applicant should work the hours so as to keep their shop open".
They found that the applicant was not excluded from the protection of WTR by the provisions of regulation 20 and went on to find that she should be given extra remuneration for all hours which she worked in excess of 48 hours a week.
(2) The counter-claim
At paragraph 3 of their reasons the tribunal identify the dispute between the parties as follows:
"3 The Respondent counterclaims the sum of £363 for reimbursement of the cost of personal phone calls made by the Applicant to South Africa. The Applicant denies she is liable for such amount arguing that she was given permission to make such calls."
At paragraph 9(o) they found:
"The Applicant had been given permission to phone South Africa using the Respondent's phone – the Applicant assumed that meant that the Respondent would be liable for the costs, there was no discussion as to costs."
At paragraph 18 they express their finding on this part of the case thus:
"18 The Respondent's counterclaim succeeds in principle. It was not reasonable for the Applicant to assume the cost of overseas calls would be met by the Respondent. We did not deal with the claim in detail, it may or may not amount to £347.86. Such sum as is agreed can be taken into account when dealing with the other matters."
The Appeal
(1) regulation 4(1) says nothing about a worker's entitlement to overtime payments
(2) assuming that the respondent breached regulation 4 by requiring the applicant to work in excess of 48 hours per week and thereby was in breach of a statutorily implied term of the contract, such breach does not sound in damages and cannot form the basis for an unlawful deduction claim under section 13(3) Employment Rights Act 1996 (ERA). Our reasons for so concluding are as follows:
(a) the enforcement machinery provided for in WTR does not extend to a right to compensation for breach of regulation 4 per se. Regulation 30(1) lists those breaches of specific provisions leading to an order for the payment of compensation. Regulation 4 is not included in the list
(b) there is no claim here, either under section 45A ERA (inserted by regulation 31 WTR), action short of dismissal, or under section 101A ERA (inserted by regulation 32 WTR), unfair dismissal.
(c) the position is analogous to that in Scally v Southern Health and Social Services Board [1991] IRLR 522, a case in the House of Lords cited by Gage J on the civil remedies available for breach of regulation 4 WTR in Barber v RJB Mining (UK) Ltd [1999] IRLR 308. In Scally a question arose as to whether a breach by an employer of the duty imposed on him by section 4 of the Contracts of Employment and Redundancy Payments Act (Northern Ireland) 1965, in identical terms to what is now section 1 ERA, gave rise to a civil right of action sounding in damages. The House of Lords held that it did not. In Barber, Gage J held that a breach of regulation 4 gave rise to civil relief by way of a declaration. No claim for damages was advanced in that case. Injunctive relief was refused on ordinary principles.
(d) it is important to appreciate the purpose of regulation 4 and the underlying Directive. It is to protect the health and safety of workers. The remedies for non-compliance are contained within sections 45A and 101A ERA. Significantly, whilst the right to annual leave under regulation 13 may now be enforced under regulation 30(1)(a)(i) (by amendment affected by SI 2001/3256, from 25 October 2001) and regulation 14 provides for pay in lieu of untaken leave following termination of the employment, no such equivalent remedies are provided in relation to breach of regulation 4.
The Cross Appeal