United Kingdom Employment Appeal Tribunal

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APPEARANCES

 

For the Appellant	MS H STOUT (of Counsel) Instructed by: Free Representation Unit 4th Floor Peer House 8 - 14 Verulam Street London WC1X 8LZ
For the Respondent	MR T SADIQ (of Counsel) Instructed by: Croner Consulting Croner House Wheatfield Hinckley Leicestershire LE10 1YG


 


HIS HONOUR JUDGE J McMULLEN QC

1. This case is about the right of an employee to take time off without pay to perform duties as a magistrate. The judgment represents the views of all three members for the Decision which we announced at the end of the oral hearing on 29 April 2003. We will continue to refer to the parties as Applicant and Respondent.

Introduction

2. It is an appeal by the Applicant in those proceedings against the Decision of an Employment Tribunal sitting at Stratford East, Chairman Mrs L Goldman, registered with Extended Reasons on 12 June 2002. The Applicant was represented by a solicitor, the Respondent by a consultant. The Applicant claimed holiday pay, constructive unfair dismissal, unlawful deductions from pay and breach of statutory rights. The Respondent denied the claims and contended the Applicant resigned of her own volition.

The issue

3. The essential issue was defined by the Employment Tribunal, but it contained one fatal error, relating to the use of the word "prevented". Subject to that, the issue was as follows:

"1 The issues in this case arise out of a claim for automatically unfair constructive dismissal concerning an alleged failure on the part of the Respondent to allow the Applicant time off for performance of public duties as a Magistrate. The questions that the Tribunal had to resolve were:

(a) whether the employee was in fact prevented from carrying out her duties by the employer allocating five days unpaid leave and requiring her to carry out the remainder of her duties during her paid leave;

(b) whether the employee's assertion of the statutory right to time off caused the employer to breach the implied term of mutual trust and confidence in the contract of employment entitling her to resign on the basis of constructive dismissal."

The legislation

4. The right to time off is set out in section 50(1) of the Employment Rights Act 1996:

"An employer shall permit an employee of his who is a justice of the peace to take time off during the employee's working hours for the purpose of performing any of the duties of his office."

The amount of time off is provided by section 50(4):

"The amount of time off which an employee is to be permitted to take under this section, and the occasions on which and in any condition subject to which time off may be taken, are those that are reasonable in all the circumstances having regard, in particular, to -

(a) how much time off is required for the performance of the duties of the office or as a member of the body in question, and how much time off is required for the performance of the particular duty,

(b) how much time off the employee has already been permitted under this section or sections 168 and 170 of the Trade Union and Labour Relations (Consolidation Act 1992 (time off trade union duties and activities), and

(c) the circumstances of the employer's business and the effect of the employee's absence on the running of that business."

The right not to be dismissed for the assertion of a statutory right is provided by section 104:

"(1) An employee who is dismissed shall be regarded …….. as unfairly dismissed if the reason ….. for the dismissal is that the employee -

(b) alleged that the employer had infringed a right of his which is a relevant statutory right."

Dismissal is defined by section 95, and in respect of what is generally known now as constructive dismissal, it is provided as follows:

"(1) …… an employee is dismissed by his employer if -

….

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."

Tribunal directions

5. The Employment Tribunal directed itself by reference to the above sections, but as is clear from our citation from its definition of the issues, it decided it should rephrase and replace the statutory question in section 50(1) of whether the employer "permitted an employee" with the question "whether the employee was in fact prevented". Further, the Tribunal did not set out, and appears to have paid no attention to, section 50(4)(b). In deciding what was reasonable the Tribunal directed itself by reference to the Respondent's policy of granting five days' leave of absence for compassionate reasons. In its approach to constructive dismissal the Tribunal appears to have directed itself by reference to what "is reasonable in all the Respondent's circumstances". It should be noted that reasonableness for the purposes of ordinary unfair dismissal under section 98(4) is not a matter to be considered in respect of automatically unfair dismissal under section 104. The Applicant here had less than one year's continuous service, was disentitled by section 108(1) and thus relied on section 104.

The Decision

6. The Tribunal found that the Respondent:

"allowed the Applicant a reasonable amount of time off during her working hours for the purposes of performing the duties of her office. The Applicant was not unfairly dismissed by reason of asserting a statutory right to time off …. nor was she constructively dismissed"

The Appeal

7. The Applicant appeals that finding on five grounds, which we decided for reasons which we gave, are properly before us, applying the principles in Miriki -v- General Council of the Bar [2002] ICR 505 CA paragraphs 26, 28 and 40. We decided it was not necessary for the Applicant to amend her Notice of Appeal since she was merely amplifying existing grounds, but if we were wrong about that, she satisfied the test in Miriki. These grounds are that the Tribunal:

(a) reversed the emphasis in section 50(1);

(b) failed to give proper consideration to each of the factors in section 50(4);

(c) took account of an irrelevant factor viz the Respondent's policy on

compassionate leave;

(d) did not balance the relevant considerations or explain how they were to be balanced;

(e) wrongly applied the "band of reasonable responses" test rather than an objective test of reasonableness.

8. Directions sending this appeal to a full hearing were given at a preliminary hearing by H H Judge Altman and members on 6 November 2002.

The parties

9. The Respondent runs a chain of catalogue retail stores from five hundred sites within the United Kingdom. It has a turnover of £2.8 billion. It has a Director at Board level responsible for HR. It employs approximately five hundred persons in a distribution centre in Milton Keynes. There is an administrative department which administers the stores within its area. In that department are twelve staff, including the Applicant. There was only one other person who could give cover for the Applicant during any absence, although it was anticipated that that number would grow by one.
10. The Applicant was employed as a Regional Administrator, initially having been a secretary, from 20 March 2001 until the relationship terminated on 5 November 2001. On the day of her appointment she was notified also that she was to be nominated as a magistrate. Confirmation of that came forward in August 2001. The Applicant told us that since the age of 17 she had always wanted to be a magistrate. The Lord Chancellor, who appoints magistrates, is committed to appointment on merit, but is keen to encourage diversity. The Applicant is black, married with two young children and at the time of her appointment to the Basildon Bench, was 39.

The findings

11. Without objection we have been shown the Applicant's witness statement which adds depth to the Tribunal's findings. As soon as the Applicant knew she was to be recommended, she notified the Respondent. When she was appointed, the Lord Chancellor's Department requested from her a list of dates for sitting in 2002, so as to enable a rota to be drawn up. The Bench to which she was appointed preferred magistrates to sit a minimum of thirty six half day sessions; the requirement from the LCD is a minimum of twenty six sessions, i.e. a total of thirteen days. The Respondent has no policy on time off for public duties.
12. From October 2001 the Applicant and members of the Respondent's HR department discussed how time off could be given to her. She presented for consideration a list of twenty Wednesdays, but on clarification, the Respondent understood the Applicant was asking for thirteen days' unpaid leave, so as to fulfil the minimum requirements of her office. The Respondent decided the correct analogue was its policy on compassionate leave. It decided that in excess of those five days, the Applicant would have to take time from her paid holiday. The Applicant considered this was unacceptable and resigned. She had previously been off work due to stress and her case was that she was not prepared to put up with the working atmosphere, nor to fight on any more for her rights. The Tribunal decided that the Applicant had not proved a fundamental breach of contract entitling her to resign, and claimed constructive unfair dismissal.

Public policy and the right to time off

13. Ms Holly Stout of the Free Representation Unit, on behalf of the Applicant, submits that there are public policy considerations relevant to the right to time off for public duties, and that these distinguish the treatment of the right from the rights to take time off available elsewhere in employment protection legislation. Without objection she put before us material obtained from the website of the Magistrates Association: www.magistrates-association.org.uk. This gives a very helpful perspective to the relationship between magistrates and employers. It includes the following:

"Employing a Magistrate

Serving the Community Together

The magistrates' courts service depends on local people to sit as justices of the peace. It is considered to be important for business to be seen to take part in its local community.

Court business takes place during working hours so there is a need to ask for employers, to give employee(s) time from work to fulfil this valuable task. There can be significant benefits to both employer and to employee. Whilst the business expresses its culture of service in the community, the magistrate employee will have new learning opportunities and a focus beyond work, through which to gain transferable skills to bring back into the workplace.

Support from Employers

The contribution that some employers are already making has been, until now, undervalued and under recognised."

14. There then follow a number of statements from major high street and national employers, all attesting to the valuable contribution magistrates make to the work they do for employers. It is noted that many businesses pay magistrates for the time they spend on the Bench, but where it is not possible, payment for loss of earnings may be available through public funds. Then this:

"Employing the Magistrate - Skills for the Business/Organisation

At present most businesses are run in a climate of financial constraints and in these circumstances, employees are their most valuable resource. Releasing an employee to sit as a justice provides the opportunity for the individual concerned to develop and acquire skills through an alternative route to the workplace."

15. The right to time off for duties as a magistrate under section 50(1) is closely related to time off for the performance of public duties as a member of public bodies provided by section 50(2). Broadly speaking these are Tribunals, local, police, health, education, water and environmental authorities. Again, the right is to be permitted to take time off with no concomitant right to be paid. As is clear from the material provided by the Magistrates Association, it is also the experience of members of this Appeal Tribunal that many employers allow their employees time off with pay to sit on these authorities, and such arrangements are usually regulated by collective agreements for this purpose.
16. In a different category, and in a different statute now, is the right to take time off to carry out the duties of a trade union or an employee representative: see Trade Union and Labour Relations Act 1992 sections 168-9. In addition is the right to take unpaid time off to take part in trade union activities under section 170. We accept Ms Stout's submission that the approach of the law to these provisions is different from the approach under section 50 of the Employment Rights Act since there are different policy objectives. In connection with trade union rights, employers, generally speaking, agree voluntarily to recognise trade unions and the provision of time off for union duties, including training, is seen as providing an important contribution to the encouragement of harmonious industrial relations. That is one explanation for the requirement that time off for these duties be paid. There is no civic dimension to this right.
17. In a third category are rights which might be described as personal to the employee. Here we find the right to time off for antenatal care, to care for dependants, parental leave and to look for work prior to dismissal for redundancy. This category is different because there is no civic dimension. Further, the benefit to an employer is here less obvious than it is in the support for orderly industrial relations.

Submissions and conclusions

18. Counsel addressed us by reference to the five grounds of appeal which is a convenient way for us to present our conclusions.

(a) Reversal of the emphasis of section 50(1).

19. Although the Tribunal in its Decision reflects faithfully the language of section 50(1) it is clear from its question and answer under the heading of "Issues" that it was setting itself a different standard. We accept the submission that this requires a different emphasis to be placed upon the statute. The question is not whether the Applicant was prevented from fulfilling her public duties. If it were, the Tribunal could not be faulted in asking whether it was unreasonable for the Applicant to use her own holiday for the additional eight days which the Respondent was not permitting her to take. We consider there is a qualitative difference between the positive duty on an employer to permit time off and the Tribunal's formulation of whether the employee has been prevented from taking time off. It makes the task of proving breach harder for the Applicant and does not correspond to the statute.
20. It appears from paragraph 14 of its Reasons that the Tribunal was accepting the Respondent's case that it was not unreasonable for the Applicant to take eight days of her annual holiday in order to carry out her magistrate's duties. In granting the Applicant more than the twenty days' minimum entitlement under the Working Time Regulations 1998, making a total of thirty two days paid annual holidays, it could not be said that the Applicant was prevented from discharging her magistrate's duties. But that is not an answer to the statutory question of whether the Respondent failed to permit her to take time off. We therefore find the Employment Tribunal erred in its construction of section 50(1). The error in its definition of the issue is not redeemed by the formulation adopted in the Decision part of its Reasons.

(b) Failure to consider the factors in section 50(4)

21. The main thrust of Ms Stout's criticism on behalf of her client of this part of the Tribunal's Decision relates to its failure to consider section 50(4)(a) in the context of the "requirement" of the Lord Chancellor for a magistrate to sit a minimum of thirteen days. The unchallenged evidence before the Tribunal was of such a requirement.
22. The starting point for the consideration of how much time off is reasonable is to ask how much was required for the performance of the duties of the office of magistrate. Ms Stout does not go so far as to say that because the requirement is thirteen days, anything less must always be unreasonable. Nevertheless, the statute, in our judgment, requires the Tribunal to consider the relationship between the requirements of the office and the amount of time off permitted, in this case thirteen days, together with the requirement to discharge the particular duties, again thirteen days, and the amount of time permitted, five days. As a matter of impression, it would be difficult for a Tribunal to find that it was reasonable to permit no more than five in order for the Applicant to fulfil a requirement of thirteen days, if section 50(4)(a) were construed on its own.
23. The stature requires more. As was held in Borders Regional Council -v - Maule [1993] IRLR 199 EAT by Lord Coulsfield at paragraph 4:

"The statute requires the Industrial Tribunal to consider the whole circumstances, and those circumstances must include the number and frequency of similar absences which have been permitted by the employer. In order to show that they have performed their statutory function, it is, in our view, necessary for the Industrial Tribunal to explain what considerations have been taken into account and make some attempt to explain how those considerations have been balanced, before reaching the conclusion that the employer has acted unreasonably."

In that case the Tribunal was found to have concentrated on only one consideration which was a crucial point of its decision, and failed to take all proper considerations into account. Thus in our case, it would properly have to explain why that relationship of thirteen to five days off was considered reasonable.

24. In addition, since as we have noted, the Tribunal failed to cite section 50(4)(b), it must be questioned whether the Tribunal considered the contents of this sub-section at all. It may have been common ground that the Applicant had had no additional time off for any other purpose, but the absence of a request by her for time off for this purpose, i.e. a nil return, is surely relevant to the Tribunal's consideration of what is reasonable. Since she had no time off for trade union duties, that should have weighed in her favour. The Tribunal did not so weigh it.

(c) An irrelevant factor

25. In deciding what was reasonable the Tribunal fixed its attention upon the Respondent's compassionate leave policy. This was because the Respondent had no policy in relation to public duties and the only analogue which it decided to adduce for the decision made by the relevant managers in the Applicant's case was its policy of giving five days' compassionate leave. The Tribunal noted that the Respondent did not look to any other organisation in fixing its view as to what was a suitable number of days. The Tribunal seems to accept that this was a precedent for the Respondent to rely upon, and on the basis of that precedent, it had experience of managing five days' absence.
26. It also correctly rejected an analogue of ill-health cover as having no bearing on the instant case. Such ill-health cover is, of course, unpredictable in most cases (planned surgery being the exception). But a major difference between on the one hand sickness absence and compassionate leave, and on the other holiday and time off for magistrate's duties is that compassionate leave for a block of five days cannot properly be compared with a request for either thirteen days over consecutive weeks or twenty six half days. It appears that the Respondent's policy on compassionate leave was to make it available unpaid, which is, we accept, the only relevant similarity between that and time off under section 50(1).
27. The Respondent, and thus the Tribunal, appears to have given no consideration to the way in which the Respondent treats or would treat requests for time off for reservists in the armed services, or for those summoned to do jury service or who sit on Tribunals. Further, the Tribunal seems to have accepted the Respondent's defence for the refusal to permit the Applicant to take more than five days as being unjustified expense and loss of working time in using temporary staff. Yet, once that is considered, the money available to pay for such additional cover if required would come from the wages unpaid to the Applicant for the same period of time. The Tribunal accepted the Respondent's case that the resources of other members of staff would be overstretched as a result of covering for the Applicant's extended absence. Yet it further accepted the evidence that in periods of extended ill health, cover would be provided. We consider there is substance in the Applicant's submission that the Tribunal erred in its acceptance of the Respondent's approach to compassionate leave.

(d) Balancing the considerations

28. As noted in Borders Regional Council (above), it was necessary for the Tribunal to balance the considerations. We accept the submission that the Tribunal appears to have focused almost exclusively on section 50(4)(c). That is the circumstances of the employer's business rather than all the circumstances enjoined by the opening of section 50(4). An echo of that is found in the passage we cited at paragraph 5 above relating to the "Respondent's circumstances". In our judgment the Tribunal has not explained how it balanced not only the circumstances in section 50(4)(c) but all the circumstances.

(e) The band of reasonable responses

29. Anticipating the submission made on behalf of the Respondent by Mr Tariq Sadiq that the Tribunal should consider in its assessment of the word "reasonable" a band of reasonable responses, Ms Stout contended that this was an impermissible approach to this particular section. Mr Sadiq argued from authority that such an approach was required. In Ministry of Defence -v- Crook and Irving [1982] IRLR 488 EAT, Tudor Evans J said that the same principles apply for the purpose of the grant of time off with pay for trade union duties under what is now the Trade Union and Labour Relations Act 1992 section 168 to those which apply to the assessment of reasonableness in unfair dismissal under what is now section 98(4) of the Employment Rights Act 1996. In paragraph 16, the EAT plainly drew on the "range of responses" approach first set out in Rolls Royce Limited -v- Walpole [1980] IRLR 343 at 346, and applied it to the consideration of time off for trade union duties.
30. Ms Stout argues that that test is more generous to an employer than a straightforward objective reasonable test, which she contends is imposed by section 50. We agree. We consider that what is a reasonable amount of time off can be considered objectively by reference to the factors set out in section 50(4) which involve also a consideration of all the circumstances. We distinguish the judgment in MOD -v- Crook and Irving on the basis that now the right to time off for trade union duties is contained in a separate statute from the rights not to be unfairly dismissed and to time off for public duties. Further, for the reasons we have explained in paragraphs 13-17 above, no public policy considerations enter into the grant of time off for trade union duties, whereas it is in the public interest that persons deemed suitable for appointment as magistrates should be released from their employment duties so as to discharge the requirements of that office. It furthers the administration of justice that people from the local community should sit on the Bench, and take part in the Tribunals and statutory authorities set out in section 50(2).
31. Just because section 50 and section 98 are in the same statute, they do not require the same treatment of the word "reasonable". Our attention was drawn to Hudson -v- George Harrison Ltd EAT/0571/02, Judge Peter Clark, which considered the question of reasonableness for the purpose of an employer's defence to a claim for a redundancy payment under section 141(2). It was held that that section requires a different approach to the test of reasonableness under section 98(4), since the former includes account of the personal circumstances of the employee. Personal circumstances of the employee are in our view relevant to the assessment of what is reasonable under section 50.
32. By whichever route, we hold that the question of reasonableness under section 50 must take account of all the circumstances including those set out in section 50(4) and is not susceptible to the "range of reasonable responses" test in section 98(4) cases. This therefore gives scope to the Employment Tribunal to set the standard of what is reasonable in the particular case, rather than by reference to what a range of reasonable employers might consider permitting. In our judgment the Tribunal took the former approach, as appears from paragraph 14 where it is considering what is unreasonable in the context of the holidays granted by the Respondent, and paragraph 16 where it was held that:

"5 days is reasonable in all the Respondent's circumstances"

This focuses unilaterally on the Respondent and not bilaterally on the Respondent and the Applicant.

Disposal

33. We uphold the Applicant's submissions on the five grounds set out in the Notice of Appeal. It follows from the Tribunal's approach to section 50 that its approach to the question of constructive dismissal based largely upon section 50 cannot be sustained. Technically, the Tribunal was required to deal with the claim of constructive dismissal, but, quite rightly, could not do that until it had determined the issue of reasonableness under section 50. Having heard the submissions of Counsel, we will remit the case to a differently constituted Tribunal for a full re-hearing.

Guidance

34. This case illustrates two things. First, the almost total absence of authorities in relation to complaints about the failure to permit time off conforms to the experience of the lay members of this Tribunal that permission, and often permission with pay, is rarely the subject of dispute. This means that the responsibility of employers is usually discharged to the satisfaction of themselves and their employees in recognition of their civic responsibilities.
35. Secondly, the absence of any policy by the Respondent in this case to deal with applications for time off made under the statute has caused this litigation to be conducted. We would urge employers, in agreement with trade union or employee representatives as appropriate, to put in place policies for the handling of applications for time off not only for public duties, but for the whole range of purposes in the employment protection legislation.
36. We are most grateful for the assistance given to us by Counsel and FRU. The appeal is allowed and the case is remitted to a different Employment Tribunal for a full re-hearing.