United Kingdom Employment Appeal Tribunal

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Cite as: [2011] UKEAT 0067_10_2007, [2011] UKEAT 67_10_2007

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Appeal No. UKEATS/0067/10/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

At the Tribunal

On 20 July 2011

Before

THE HONOURABLE LADY SMITH

(SITTING ALONE)

MR GRAEME HAMILTON AND OTHERS APPELLANTS

NHS GRAMPIAN RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellants

MS N CUNNINGHAM

(of Counsel)

Instructed by:

Allan McDougall & Co Solicitors

3 Coates Crescent

Edinburgh

EH3 7AL

For the Respondents

MR I TRUSCOTT

(One of Her Majesty’s Counsel)

Instructed by:

NHS Scotland Central Legal Office

Anderson House

Breadalbane Street

Bonnington Road

Edinburgh

EH6 5JR

SUMMARY

UNLAWFUL DEDUCTION FROM WAGES

Employee’s appeal. Rule 1(7) of Employment Tribunal Rules. Amendment. Expenses. Circumstances in which Tribunal did not err by refusing amendment, by determining that Claimant had presented a claim which was the same as another claimant’s (rule 1(7)) and by finding Claimants liable in expenses. Expenses of misconceived appeal awarded against Claimant.

THE HONOURABLE LADY SMITH

Introduction

1. This is an employees’ appeal from a judgment of the Employment Tribunal sitting at Aberdeen, Employment Judge Mr J Hendry, registered on 10 September 2010, dismissing the only claim which was not withdrawn, namely Mr Girling’s claim, and finding all Claimants liable to the Respondents in expenses in the sum of £10,000.

2. The claims were presented as multiple claims, under rule 1(7) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 (‘the 2004 Rules’). The Claimants were maintenance engineers and electricians.

3. The judgment followed a two day hearing. The Claimants’ claims were supported by their trade union, Unite. They were represented by Mr Bathgate, solicitor, before the Tribunal and by Ms N Cunningham, of counsel, before me. The Respondents were represented by Mr I Truscott QC before the Tribunal and before me.

Background

4. In February 1999, the UK Government published a paper entitled “Agenda for Change: Modernising the NHS Pay System.” It concerned modernisation of pay and terms and conditions in the NHS throughout the UK, including the need to address the issue of whether there were pay disparities that did not comply with the requirements of the Equal Pay Act 1970. There were, also, I was advised, concerns that payments were being made to certain employees, under the heading of “overtime” where overtime work was not in fact being carried out. For convenience, I will refer to Agenda for Change as ‘AFC’.

5. There were three strands to AFC. First, a job evaluation study, secondly, new and standardised terms and conditions, and thirdly, the development of a new knowledge and skills framework.

6. The relevant unions accepted the outcome of the job evaluation study – which, importantly, was recognised to be free of gender discrimination - and following discussions and agreement with them, including Unite, AFC resulted in a new set of terms and conditions for all NHS employees including the Claimants. By letter bearing to be issued in December 2004, Gordon Morrice, Director of Human Resources, and Angus Gordon, Employee Director, advised employees that, because of AFC, their contracts of employment were formally amended and provided a set of terms and conditions. Regarding “Hours of Work”, the provision was:

“With effect from 1 December 2004 the full time working week will be based on 37.5 hours (excluding meal breaks) for all staff groups.”

7. Regarding overtime, the AFC document provided that new overtime rates would be implemented once “personal assimilation” had taken place but nowhere did it provide or suggest that any overtime hours or overtime pay would be guaranteed to any employee.

8. The current terms and conditions of Scottish NHS employees are as set by AFC. Mr Girling was assimilated to the AFC conditions on 1 March 2007.

9. By NHS Circular dated 18 October 2007, the Scottish Government Health Workforce Directorate issued instructions to all NHS employers as follows:

“DEFINITION OF CONTRACTUAL OVERTIME FOR THE PURPOSES OF THE AGENDA FOR CHANGE TERMS AND CONDITIONS HANDBOOK

Summary

It has been agreed in partnership under the aegis of the Scottish Terms and Conditions Committee (STAC) that contractual overtime should be included in the regularly paid supplements referred to in sections 13.9 and 14.4 of the Agenda for Change Handbook. Contractual Overtime will be defined as follows:

“A commitment by an individual to work where an employee has a formal agreement contained within their contract of employment to overtime as part of their normal working pattern and/or a commitment by an employee to work whereby the individual employee enters into agreement to undertake overtime at a given time or frequency from which point they can only leave on arrangement by giving formal notice in writing of a minimum of 4 weeks.”

10. Thus, whilst the result of AFC was not that no overtime could be worked, it was to be carefully regulated. Regular overtime could be an aspect of an employee’s terms and conditions of employment but only if it met the strict requirements of that circular. I would, at this point, observe that it was not suggested that, in Mr Girling’s case, those requirements were ever met.

11. Thereafter, a decision was made to reduce overtime working in 2009, on account of financial constraints, and more rigorous regulation was determined on. The October 2007 circular was superseded; all members of staff, including the Claimants, were, by letter of 1 July 2009, advised that overtime would only be permissible if one or more of the following criteria were satisfied:

· Essential repairs or attention where access cannot readily or normally be expected during normal hours without significant disruption to clinical services, or

· Essential repairs or attention where failure to complete the task will result in the unacceptable loss of a key site service or system, or

· Essential repairs or attention deemed necessary where there is potential damage, danger or risk to persons, property or key site services, or

· Essential repairs or attention deemed necessary where there is a detrimental effect on the provision of clinical care to patients and there was appropriate management approval. The letter stated:

“Where it is determined that any overtime does not meet the above criteria then staff are given 2 months notice of termination of this overtime (i.e. with effect from 1^st September 2009). Between now and 1^st September, the status quo will apply to overtime currently worked.”

12. The Respondents subsequently extended that notice period to October 2009 but as from that time, all non-essential overtime ceased and the system as set out in the letter of 1 July 2009 applied. A formal grievance was raised by all the Claimants regarding the 2009 changes to overtime provision but was not resolved in their favour.

Form ET1

13. The Claimants were represented by Unite from the outset. In May 2010, two forms ET1 were presented to the Employment Tribunal. The relevant parts of the first form were as follows. Those parts inserted into the pro forma are shown as quotations:

“ 1. YOUR DETAILS

1.1 Title “Mr”

1.2 First name (or names): “Graeme”

1.3 Surname or family name: “Hamilton”

1.4 Date of birth (date/month/year): “31-01-1960”

……………………..

……………………

2.3 If you worked at a different

Address from the one you have

given at 2.2, please give the

full address and postcode. “Dr Gray’s Hospital

West Road

Elgin.”

3. Employment Details

3.1 Please give the following information if possible.

When did your employment start? “1984”

Is your employment still continuing? “Yes”

…………….

3.2 Please say what job you do or did? “MAINTENANCE ELECTRICIAN”

……………………

………………………….

5. YOUR CLAIM

5.1 Please tick one or more of the boxes below. In the space provided, describe the event, or series of events, that have caused you to make this claim:

a…………..

b……………

c…………….

d I am owed

holiday pay “√”

………

other payments “√”

e Other complaints “√”

5.2 Please set out the background and details of your claim in the space below. The details of your claim should include the date when the event(s) your are complaining about happened; for example, if your claim relates to discrimination give the dates of al the incidents you are complaining about, or at least the date of the last incident. If your complaint is about payments you are owed please give the dates of the period covered. Please use the blank sheet at the end of the form if needed.

“My colleagues and I raised a grievance last Autumn about the non payment of our regular contractual overtime.

We attended the stage 2 grievance hearing in November 2009 and were verbally told at the end of that meeting we had been successful in our grievance claim that the management’s decision to change the overtime arrangement was deemed to be an organisational change thus our pay should have been protected.

However when we received the written outcome the decision was changed to us not winning our case.

This has resulted in a complaint from our Union and the matter is now at stalemate between the staff and NHS Grampian with the continuous non payment of the regular overtime not being paid as per the collective agreement on organisational change.

I am entitled to protection of the regular overtime worked whilst “on call” duty which is 4 hours in total.

I had always been paid these four hours guaranteed whilst on holiday and sick leave too but this has ceased in October last year and the non payment is continuous ever since.

I am asking the Tribunal to consider my and others’ claims with a view to recovering the unpaid wages.

I am also seeking an Order from the tribunal of a contractual declaration that I am entitled to these four hours due to the management change being an organisational one and that therefore this entitlement forms part of my terms and conditions of employment with NHS Grampian.”

6. What compensation or remedy are you seeking?

6.1………..

“Payment of the 4 hours o/time every 3 weeks as per the practice prior to 1.10.09 and protection of this payment for as long as I work for NHS.”

…………..

………….

10 Multiple cases

10.1 To your knowledge, is your claim one of a number of claims against the same employer arising from the same, or similar, circumstances? “Yes”

“PLUS 2 OTHERS”

FRANK DIACK VINCE GIRLING

MASTRICK ROAD 9 BRODINCH PLACE

ABERDEEN ABERDEEN

( MAINTENANCE ENGINEER) (MAINTENANCE ELECTRICIAN)”

The second form ET1 was for Andrew Hewitt and at part 5.2 stated:

“MY CLAIM IS THE SAME AS GRAEME HAMILTON + OTHERS V NHS GRAMPIAN – 105537/10

SO PLEASE CO-JOIN MY CLAIM WITH THE ABOVE TRIBUNAL CLAIMS AS THE ISSUES ARE THE SAME.”

14. Accordingly, Mr Hamilton, in terms of his form ET1 appeared to make a claim for unlawful deduction from his wages in respect of “on call” duty, sick pay and holiday pay, and “for a contractual declaration” that he was entitled to be paid “4 hours overtime” every three weeks, including during holidays and if he was off sick. That is, he asserted that, in his case, the contract under which he worked as a maintenance electrician at Dr Gray’s Hospital, Elgin, entitled him to 3 hours “on call” overtime wages once every 3 weeks even if the due date occurred when he was off sick or on holiday and he had not been paid those sums since the changes to the overtime system in the autumn of 2009, which must be a reference to the coming into force of the changes intimated in the July 2009 letter. Two other Claimants, including Mr Girling were referred to at paragraph 10.1 of his form in, it appears, an attempt to utilise the provisions of rule 1(7) of the 2004 Rules. Mr Hewitt’s claim was conjoined and all four claims were before the Tribunal at the hearing following which the judgment now appealed against was issued. It took place on 16 and 17 August 2010.

The Tribunal hearing and Judgment

15. As the Employment Judge explains at paragraph 3, the issue between parties, as confirmed by Mr Bathgate, was:

“…whether there was a term of the claimants’ contract established through custom and practice allowing them fixed periods of overtime and whether the clause survived a Collective Agreement entered into on behalf of the claimants by their trade union, Unite which was meant to be a comprehensive statement of the claimants’ terms and conditions.”

16. The collective agreement referred to was that which emerged from AFC, to which I refer above.

17. The Respondents’ position was (and is) that the Tribunal had no jurisdiction to hear the claims as they were not properly claims for unlawful deductions from wages; they were claims for breach of contract. Mr Truscott had alerted Mr Bathgate to that being their position prior to the hearing. After discussion on the first day of the hearing, Mr Bathgate indicated that he may have to amend.

The application to amend

18. On the second day of the hearing, Mr Bathgate (a) indicated that Mr Hamilton’s, Mr Diack’s and Mr Hewitt’s claims were withdrawn, and (b) presented a Minute of Amendment which was in the following terms:

“AMENDMENT TO

STATEMENT OF CLAIM

IN THE APPLICATION

VINCENT GIRLING

NHS GRAMPIAN

CASE NUMBER:105539/2010

1. By adding a further clause to the Statement of Claim: -

“Further in respect of the claimant Vincent Girling he seeks a declaration in terms of Section 11 of the Employment Rights Act 1996 of a contractual term relative to his overtime hours entitlement as agreed with the respondents and him and him assuming the role of maintenance electrician at Woodend Hospital, Aberdeen. The claimant, Girling, asserts that the agreement was for him to work and be given work over his basic contractual hours for a period of 4 hours overtime each Saturday.”

19. Mr Bathgate indicated to the Tribunal that he intended to proceed with a claim for Mr Girling for unlawful deductions from wages and for a declaration in terms of section 11 of the 1996 Act. The amendment was opposed, as explained by the Employment Judge in paragraphs 11 and 12. The application was refused. The Employment Judge’s reasons are explained at paragraphs 19 to 21 and were, in summary, that it came very late in the day, it was in controversial terms, it contained no factual basis for the assertion that there had been “an agreement” relating to overtime, there was no factual detail relating to Mr Girling’s particular situation and it made the allegation for the first time that the Claimant was entitled to be given four hours work each Saturday.

Mr Girling’s unamended case

20. Mr Bathgate sought to persuade the Employment Judge to allow Mr Girling’s case to proceed as a claim for unauthorised deduction from wages and for a section 11 declaration. Mr Truscott submitted that it was not competent to do so. The Employment Judge determined that Mr Girling’s claims were not competent. That was because the claims were more properly characterised as claims for breach of contract and damages and that insofar as the matter of a section 11 claim declaration was concerned, he was, in reality, seeking to have his contract interpreted, which was outwith the ambit of the statutory provisions. The Employment Judge observed, at paragraph 28 that the boundary between claims that can properly be regarded as falling within the ambit of section 13 of the Act and contractual disputes can be unclear but he does not suggest that there was a lack of clarity in the present case. Further, the Employment Judge did not accept that Mr Girling’s claim fulfilled the requirements of rule 1(7) of the 2004 Rules.

Expenses

21. Mr Truscott sought an award of expenses against all the Claimants on the basis that the claims were misconceived, indicating that the cost to the Respondents was liable to be of the order of £15,000. The Employment Judge does not record the proposition that the claims were misconceived as having been contested – all that appears to have been argued by Mr Bathgate was that the sum referred to was excessive, whilst confirming that any award would be met by Unite.

22. At paragraph 33, the Employment Judge states:

“33. I accept that awards of expenses in Tribunal proceedings are still relatively rare. Nevertheless I have found that the claims that were raised were misconceived.”

23. He considered that the Respondents were entitled, in all the circumstances, to instruct senior counsel and awarded the sum of £10,000 as expenses.

The Notice of Appeal

24. The Notice of Appeal, which was presented to this Tribunal on 20 October 2010, contained four grounds.

25. First, Mr Girling had a claim under s.13 of the 1996 Act for unlawful deductions from wages, and the Tribunal had erred in finding that it had no jurisdiction to hear it; an ascertainable sum that was due had not been paid.

26. Secondly, the Tribunal had erred in finding that it had no jurisdiction to hear the claim under section 11 of the 1996 Act; Mr Girling had received no terms in respect of “his overtime working” and he sought “a declaration of his contractual entitlement under an implied condition which arose through custom and practice.”

27. Thirdly, the Tribunal had erred in refusing to allow the amendment as it merely sought to expand on the claim outlined in the ET1 and there was no prejudice to the Respondents.

28. Fourthly, the award of £10,000 expenses was excessive; no reasonable Tribunal would have considered it appropriate to make such a significant award.

Proposed additional grounds of appeal

29. On 19July 2011, the day prior to the hearing before this Tribunal, a document headed “Proposed Additional Grounds of Appeal” was presented and intimated to the Respondents. It is in the following terms:

“(e) The Employment Judge erred in finding at para 29 of his judgment that Mr Girling’s claim did not fulfil the requirements of rule 7(1) (sic).

(f) The Employment Judge erred in holding at para 33 of his judgment that the Claimants’ claims were misconceived, inconsistently with his own observations at para 28 that ‘the boundary between claims that can properly be regarded as falling within the ambit of section 13 of the Act and contractual disputes can be unclear’ and at para 30 that ‘the authorities do not always appear to be consistent.’

NAOMI CUNNINGHAM

18 July 2011”

30. At the start of the appeal hearing, Ms Cunningham moved to have additional grounds (e) and (f) added to those in the Notice of Appeal. She recognised they came very late in the day and apologised for that. No explanation for the lateness was given. She could not explain why they were not included in the original Notice of Appeal. Mr Truscott observed that the lateness of the new grounds was symptomatic of the Claimants’ approach to these claims. He recognised that Mr Girling’s appeal could not succeed if the Employment Judge’s decision that his application did not comply with the requirements of rule 1(7) was not overturned and that it was, accordingly, of critical importance to him. Very fairly, Mr Truscott indicated that he would seek to respond both to it and to ground (f) although it was difficult for him, before he heard the submissions, to be sure he could, with such short notice, do so.

31. In all the circumstances, I allowed Ms Cunningham to address me on the additional grounds on the basis that I would reserve my decision as to whether or not I would allow them to be added until I had heard argument; it would, by then, be apparent whether or not the Respondents were able properly to deal with them. In the event, Mr Truscott made full submissions in response and I proceed on the basis that grounds of (e) and (f) were part of the appeal.

Relevant law

32. Rule 1 of the 2004 Rules concerns “Starting a claim” and rule 1(7) provides:

“(7) Two or more claimants may present their claims in the same document if their claims arise out of the same set of facts.”

33. It is, accordingly, not competent to present separate claims in the same form ET1 if they are not demonstrated, in the form, to “arise out of the same set of facts”. Also, whilst multiple claimants may use a single form if their claims do arise out of the same set of facts, they must nonetheless present “their claims” in the ET1. That is, it requires to be clear from the form what each claimant avers as having happened in their own case and what remedy each of them is seeking. If they do not do so, then they cannot be said to be presenting “their claims”. Nor, absent such information, would the respondents be provided with fair notice of the claims of each claimant.

34. Claims for unpaid wages that are due and outstanding may be made as claims for unauthorised deductions under section 13 of the Employment Rights Act 1996:

“ 13 Right not to suffer unauthorised deductions

(1) An employer shall not make a deduction from wages of a worker employed by him unless –

(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

………………….

(2) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.”

35. Accordingly, if an employee has earned wages that are due and payable to him and they have not been paid, he can make a claim for payment of those wages under and in terms of section 13 of the 1996 Act (see: Lucy & Ors v British Airways plc [2009] WL 6061 at para 39). He cannot, however, make a claim under section 13 for a determination that he should be found entitled to be provided with work so as to earn wages or that his employer has failed to comply with such an obligation in the past. Such a claim is one for breach of contract and the remedy lies in a claim for damages in the ordinary courts.

36. Part 1 of the 1996 Act relates to the right of an employee to be provided with statements of employment particulars. Section 1 contains a list of particulars that must be provided and of particulars which, if they exist (they may not), must be included. It includes:

“1(4) (c) any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours).”

37. The provisions of section 11 of the 1996 Act, insofar as relevant, are:

“11 References to [employment tribunals]

(1) Where an employer does not give an employee a statement as required by section 1…….(either because he gives him no statement or because the statement he gives does not comply with what is required), the employee may require a reference to be made to an [employment tribunal] to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the section concerned.

(2) Where –

(a) a statement purporting to be a statement under section 1…….has been given to an employee, and

(b) a question arises as to the particulars which ought to have been included or referred to in the statement so as to comply with the requirements of this Part,

either the employer or the employee may require the question to be referred to and determined by an [employment tribunal].”

38. As discussed by Maurice Kay LJ, in the case of Southern Cross Healthcare Co Ltd v Perkins and others [2011] IRLR 247, employment tribunals are statutory bodies and their jurisdiction is limited in a way which reflects:

“..the consistent reluctance to enlarge the breach of contract jurisdictions of employment tribunals to embrace workplace disputes during the currency of a contract of employment” (paragraph 30)

39. The current position is that the breach of contract jurisdiction is confined to claims arising or outstanding on the termination of employment (Employment Tribunals Act 1996; Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 SI 1994/ 1624). Accordingly, an employment tribunal cannot competently entertain a claim which, in reality, is a claim by an employee in respect of an alleged breach of contract, if his employment is ongoing.

40. Accordingly, section 11 cannot be read as conferring jurisdiction on an employment tribunal to interpret a contract of employment or adjudicate on an issue of whether or not an employer is in breach of contract. Any such issue is a matter for the ordinary courts. Tempting to any judge as it is to seek to interpret the contract before him or her, whenever such issues arise, an employment judge is not entitled to do so in a case where the employee is still in employment: see: Southern Cross Healthcare Co Ltd at paragraph 17 – 18 and the authorities cited by Maurice Kay LJ. Thus if, properly understood, a claimant is asking that an employment tribunal interpret his contract of employment, his application must be dismissed as incompetent.

41. Turning to the matter of expenses, the relevant parts of the 2004 Rules are:

“When a costs or expenses order may be made

40.—(1) A tribunal or chairman may make a costs order when on the application of a party it has postponed the day or time fixed for or adjourned a Hearing or pre-hearing review. The costs order may be against or, as the case may require, in favour of that party as respects any costs incurred or any allowances paid as a result of the postponement or adjournment.

(2) A tribunal or chairman shall consider making a costs order against a paying party where, in the opinion of the tribunal or chairman (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered, the tribunal or chairman may make a costs order against the paying party if it or he considers it appropriate to do so.

(3) The circumstances referred to in paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived.

(4) A tribunal or chairman may make a costs order against a party who has not complied with an order or practice direction.

The amount of a costs or expenses order

41.—(1) The amount of a costs order against the paying party shall be determined in any of the following ways —

(a) the tribunal may specify the sum which the paying party must pay to the receiving party, provided that sum does not exceed £10,000;

(b) the parties may agree on a sum to be paid by the paying party to the receiving party and if they do so the costs order shall be for the sum so agreed;

(c) the tribunal may order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party with the amount to be paid being determined by way of detailed assessment in a County Court in accordance with the Civil Procedure Rules 1998(1) or, in Scotland, as taxed according to such part of the table of fees prescribed for proceedings in the sheriff court as shall be directed by the order.

(2) The tribunal or chairman may have regard to the paying party’s ability to pay when considering whether it or he shall make a costs order or how much that order should be.

(3) For the avoidance of doubt, the amount of a costs order made under paragraphs (1)(b) or (c) may exceed £10,000.”

42. Thus, if an employment judge determines that a claim was misconceived, he must consider making an award of expenses.

Submissions on appeal

43. Ms Cunningham’s submissions can be summarised as follows. First, rule 1(7) was complied with; no two claims could arise out of exactly the same facts – at the very least, the parties would be different. Here, it was evident from the ET1 that the claims did arise out of the same facts. Recognising that the proper view might be that once Mr Hamilton’s claim was withdrawn, all that remained as a statement of the factual basis was the first four paragraphs of the explanation given at para 5.2, she submitted that that nonetheless was enough to meet the requirements of rule 1(7). Mr Girling was a lay person and the detail did not matter. Under reference to the case of Grimmer v KLM Cityhopper UK [2005] IRLR 596 she submitted that the 2004 rules could not cut down on the Tribunal’s jurisdiction to entertain a complaint that primary legislation empowered it to entertain, that the overriding objective required to be borne in mind, that it was a serious and draconian matter to deny a party the opportunity of having his claim determined by an employment tribunal, that claims should not readily be rejected as procedurally defective, that a technical approach was undesirable and that the threshold for access to the employment tribunal should be kept low. Mr Girling’s claim easily passed the Grimmer test at paragraph 15 of whether or not it could be discerned that he was complaining of an alleged breach of an employment right which fell within the jurisdiction of the employment tribunal. If there was a lack of detail, that could always be attended to by means of an order for further and better particulars at a case management hearing under rule 10.

44. As to the nature of Mr Girling’s claim Ms Cunningham seemed, at one point, to accept that there could be an inherent problem with it in that it could be seen as, in reality, a claim that the Respondents had breached his contract by not permitting him to earn overtime, rather than a claim for unpaid sums that had fallen due. Her answer to that though was that that could not be determined without hearing his evidence and if he had been allowed to give evidence he would have said that his pattern of overtime was an integral part of his working week so that even if he did not work the hours – such as when he was on holiday or off sick, his pay was calculated as if he had worked it. That assertion is notable as appearing to be contradictory of the position he was seeking to advance in his Minute of Amendment. Ms Cunningham insisted, however, throughout her submissions, that the two were not mutually exclusive. She did not, though, offer any explanation of how or why, if that was Mr Girling’s position, the Minute of Amendment had not stated that his case included that he was entitled to overtime pay even if he had not worked overtime hours.

45. I should record that Ms Cunningham did not dispute that Mr Girling had been assimilated to the AFC contract, a collective agreement, or that it was amended by the October 2007 circular and by the letter of July 2009 (although, as explained below, her position regarding the 2009 amendment was that it was not agreed to and was a breach of contract). Mr Girling’s position was, however, notwithstanding the AFC collective agreement and its express terms, there was an implied term entitling him to guaranteed overtime payments that was ‘external’ to and ‘survived’ AFC.

46. Turning to the section 13 claim, Ms Cunningham submitted that the Tribunal’s approach was incomprehensible. It could not be determined whether this was a claim for breach of contract or for unpaid wages, without hearing evidence.

47. Regarding the amendment, Ms Cunningham submitted that the purpose of the amendment was to put it beyond doubt that the claim in the ET1 for a “contractual declaration” was not a claim for a contractual remedy outwith the power of the Tribunal but was a section 11 claim. Pleading points should not have been strictly dealt with. Tribunal procedures needed to allow for lay representation. She did, however, accept that Mr Girling had both union and legal representation. The amendment could not have taken the Respondents by surprise. There could be no prejudice to them. The amendment did not affect the section 13 claim; it was not dependent on nor did it relate to it. Ms Cunningham did not submit that the Employment Judge failed to have regard to a relevant factor or that he relied on an irrelevant factor or that his decision on the application to amend was one which no reasonable Employment Judge could, in all the circumstances, have reached. Rather, she confined her submissions to seeking to explain why the amendment should have been allowed.

48. Turning to section 11 of the 1996 Act, Ms Cunningham submitted that this was not a borderline case. Mr Girling was alleging that he had the benefit of a term implied by conduct – the conduct was not specified – entitling him to regular overtime, with sick pay and holiday pay being calculated on the basis of regular wages plus overtime. The Respondents denied that; their position was that his contractual entitlements were exhaustively set out in the AFC contract. The dispute was not about the interpretation of the contract of employment but rather about its content and so fell fairly and squarely within section 11. At a later point, however, Ms Cunningham indicated that it was not disputed that, whatever had been the position about overtime before, in October 2009, the Respondents acted so as to impose the limitations on overtime to which I have already referred. She appeared to accept that there could be no question of it being agreed, at any time thereafter, that the Claimants or any other employees would be guaranteed fixed hours of overtime or overtime pay. The Respondents were, however, she submitted, in breach of contract from that point. She did not seek to reconcile that submission with her earlier submissions in support of his s.13 claim, that Mr Girling’s claim was not about an alleged breach of contract.

49. Regarding expenses, Ms Cunningham submitted that it was not clear from the judgment why the Employment Judge had found the claims to be misconceived. This was a preliminary stage. It could not be concluded that Mr Girling’s claim was misconceived. The hearing had involved substantial argument which showed that matters were not straightforward. She referred, in support of her submissions, to Lodwick v Southwark London Borough Council [2004] ICR 884 at 892 F-G. She submitted that awards of expenses in the employment tribunal were the exception rather than the rule. The award of expenses should be set aside. She made no submissions in support of the fourth ground of appeal.

50. Before turning to Mr Truscott’s submissions, it is important that I record the final position for Mr Girling, as explained by Ms Cunningham, after 4 pm, towards the end of the appeal hearing which had commenced at 10.30 a.m. She advised (a) that Mr Girling had retired towards the end of 2010 i.e. shortly after the hearing before the Employment Tribunal; (b) that he was not in fact contending that he had not been given the opportunity to work overtime after October 2009 – he had had overtime work and been paid for it so he made no claim in that regard; and (c) that his complaint was that he had not received, within his holiday pay, on unspecified dates between October 2009 and his retirement, any overtime money. That was, it seemed, the limit of his claim. No explanation was provided as to why that was not made clear at the outset of the hearing or, indeed, before then.

51. At the outset of his submissions, prior to the explanation of Mr Girling’s claim that was provided after 4pm, Mr Truscott explained that the Respondents still did not know what his claim was although it was not for want of trying on their part, to find out. It was not, he submitted, a claim about Mr Girling having worked overtime but not being paid for it. That would have been a relevant s.13 claim but that was not what his claim appeared to be. Rather, it seemed to be that he was claiming that he was entitled to be paid overtime money because it had been paid in the past, irrespective of whether or not the overtime hours had been worked. His claim gave no recognition, however, to AFC or to the July 2009 letter which said ‘no more non essential overtime’. Mr Truscott had, accordingly, raised these concerns with Mr Bathgate, prior to the hearing before the Employment Tribunal, in an effort to persuade him that the claims were misconceived. The outcome was that, in an apparent recognition of the fundamental flaw in the claims, three of them were withdrawn and he sought to amend Mr Girling’s claim to change it to a claim that there was an obligation to provide overtime work. He had opted to use the rule 1(7) procedure; it was not mandatory. Grimmer was not in point. The problem for Mr Girling was that not only did he require his claim to arise out of the same set of facts as Mr Hamilton’s but those parts of the ET1 that related solely to him did not relate to him and certainly had to be regarded as pro non scripto once Mr Hamilton’s claim had been withdrawn. In any event, what the attempt to amend showed was that Mr Bathgate recognised that different facts applied in Mr Girling’s case. The claim quite simply did not comply with the requirements of rule 1(7).