THE HONOURABLE MR JUSTICE WILKIE
Introduction
1.
This is an appeal by Mears Ltd against a reserved Judgment of an Employment
Tribunal held at Birmingham on various dates in March and May 2011, concerning
a claim brought by five employees of that company, whom we identify in the
order with which we will deal with them as Ms King, Mr Salt, Mr Harvey, Mr
Taylor and Mr Aziz.
Background
2.
The Tribunal determination was that the Claimants’ claims of unlawful
deduction from wages pursuant to section 23 of the Employment Rights Act
1996 were declared to be well founded. The Respondent was ordered to pay
to each Claimant, in respect of that Claimant’s successful unlawful deduction
from wages claim, the amounts set in the schedule attached to the judgment.
That schedule set out, in respect of each of the Claimants, an hourly rate of
£11.64, a number of hours in respect of each of them, in particular in relation
to Ms King 358 hours, and, as a consequence of that, the amount ordered to be
paid by the Respondent.
3.
The case concerned a dispute about the entitlement of the Claimants to
receive what was described as an “electrician’s travel time allowance” (ETTA),
which the Claimants each contended was their contractual entitlement. The Employment
Tribunal felt it had to go into the relatively distant past because it appears
that the ETTA came into existence in or about 1958, a time when those who
received it (none of whom, it would seem, were included within the Claimants)
were employed by Birmingham City Council. The ETTA payments continued until
2000, as the Employment Tribunal found, at which time there were negotiations
around rationalising the pay structures for varieties of categories of workers
employed by the council, including the electricians. The intention, as found
by the ET, in that year was to move to bonus-free working and monthly pay and,
in so doing, to remove a plethora of allowances to which employees were then
entitled.
4.
However, the ET’s finding (and this is not challenged) is that,
notwithstanding that endeavour, and the payment of a sum of £250 by way of a
consideration for relevant changes, the ETTA continued to be paid. Indeed, the
ETTA continued to be paid right up until April 2008 when the Appellant became
the employer of the relevant employees. During the period between 2000 and
2008, there had been a number of transfers of the undertaking, or part of the
undertaking of the council. In 2001, it was transferred to “Service Team” by
way of a Transfer of Undertakings (Protection of Employment) Regulations
(TUPE) transfer and, in 2006, there was a further TUPE transfer from Service
Team to Morrisons. Finally, there was a TUPE transfer in 2008 from Morrisons
to Mears Limited. On the occasions of the transfers to Service Team and to
Morrisons, it appears that the question of the continuation of the ETTA was the
subject of some discussion and debate, but the ET found (and it is not
challenged) that ETTA continued to be paid.
5.
The Employment Tribunal had to make certain findings as to the nature of
the ETTA payment in order to address a particular argument, to which we will
return. They came to their conclusions, and recorded them in paragraph 16 of
the decision. Initially, the payment was based on a detailed and complex
schedule of travel costs between the many and various depots at which
Birmingham City Council’s electricians were based at the time. The allowances
were based on, and explicitly calculated by reference to, the specific costs of
travelling between depots by reference to the cost of bus travel and a specific
allocation for time required to make the relevant journey. In its original
form, the objective of ETTA was to compensate electricians for the loss of
productivity bonuses, which would be caused by their having to travel to a
depot other than their original base before starting work.
6.
The Employment Tribunal, however, went on to find as a fact that the
ETTA allowance no longer compensated the Claimants for time actually spent, or
productivity actually impaired, as a result of the configuration of the depots
in modern times. The Employment Tribunal concluded that the payment of ETTA
was not contingent, or conditional, upon travel time being incurred or
productivity being impaired. It became, at some point, and was paid to these Claimants,
as a fixed daily premium payment in respect of each day worked. One of the Claimants,
Ms King, had described it in one of her claim forms as a “disturbance
allowance”.
7.
The Employment Tribunal had to consider a number of jurisdictional
issues before it turned to its assessment of the evidence. One of them was an
assertion that the claims made by the Claimants did not fall within the
Tribunal’s jurisdiction to entertain a complaint under section 23 of the Employment Rights Act 1996
(ERA) (namely a complaint that the employer has made a deduction from his
wages) by reference to section 27(2)(b) of that Act, which defines wages and
which states, at the end of 27(1) that “[…] any sums payable to the worker in
connection with his employment [..] but excluding any payments within
subsection (2),” is included as constituting wages. The payments described in
subsection (2) include, “(b) any payment in respect of expenses incurred by the
worker in carrying out his employment.”
8.
The argument put forward before the Employment Tribunal, and repeated
before us as ground 1(a) of the grounds of appeal, as expanded in the skeleton argument,
was that the ETTA, properly considered, fell within 27(2)(b), namely expenses.
9.
The Employment Tribunal, at paragraph 8 of its Reasons, reminded itself
of the authority of London Borough of Southwark v O’Brien
[1996] IRLR 420. We have similarly been reminded of what it says. At paragraph
27 of the Judgment of the Employment Appeal Tribunal, delivered by the then President
Mummery J, he said:
“What it is in each case is a matter of fact and degree. Our
conclusion in this case is that a payment of a mileage allowance does not cease
to be in respect of expenses because it is found to be generous. The errors of
law by the Chairman are to equate payments in respect of expenses with payments
of expenses and to treat generous expenses wholly as remuneration. Both
conclusions are in our view wrong as a matter of law.”
10.
In paragraph 8 of its decision, the Employment Tribunal reminded itself,
not only of that case, but of the principle that payment in excess of actual
expenditure incurred does not cease to be in respect of expenses merely because
it was found to be generous. The assessment whether a payment is by way of
wages or expenses is one of fact and degree, not one in which an apportionment
as between wages and expenses is possible.
11.
We have been referred to a passage in Harvey on Industrial Relations
and Employment Law at part F, paragraph 352, and to the case of Lucy
v British Airways [2009] All ER 58. The extract from Harvey
reads as follows:
“In [Lucy] the EAT held that, if a claim is unquantifiable that
would take it out of the unlawful deductions jurisdiction. But if the claim
was merely difficult to quantify and/or has not been quantified at the time the
proceedings are commenced, then that does not take it outside of the
jurisdiction. That claim related to allowances claimed by cabin crew. The EAT
held that, because, after the closure of their Manchester base, the Claimants
did not carry out flying duties, they did not therefore earn the allowances.
It follows that remuneration, which is only earned if specific tasks are
carried out, such as commission from sales, allowances for flying, or
allowances for overnight stays, cannot be claimed as a deduction from wages if
the relevant tasks have not been carried out, but may sometimes be claimed
instead under a breach of contract claim as damages for loss of the opportunity
to earn that remuneration.”
12.
The Employment Tribunal, in paragraph 8, concluded, as a matter of fact
and degree, having carefully considered the true nature of the ETTA entitlement
against the evidence they had heard, that, in its modern incarnation, it is a
specific allowance payable by reference to days worked and not by reference to
any specific travel undertaken or expenses actually incurred. In those
circumstances, they concluded that it was not a payment in respect of expenses,
but was a payment of an emolument and therefore within the scope of the
unlawful deduction from wages regime, because it did not fall within the exception
provided by section 27(2)(b).
The appeal
13.
Mr Livesey has sought to argue, by way of analogy with Lucy,
that the Tribunal was wrong in characterising this payment as wages. He says,
it is, in effect, a payment to compensate for the fact that, as presently
organised, the previous ETTA, which had originally been designed to compensate
for a loss of opportunity to earn productivity bonus, has been transformed into
a payment with no rational basis. It no longer reflects any expenditure
incurred or any opportunity lost. He has sought to argue, that, by reason of
its origins and the absence of any other rational basis for its payment, it
remains a payment by way of compensation for the historical loss of an
opportunity to earn as much by way of productivity bonus and so by analogy the
analysis in Lucy is the appropriate one.
14.
In our judgement, that argument does not succeed. It is true that, in Lucy,
the loss of opportunity to earn the flying allowance, (because after a
reorganisation those employees were no longer flying and therefore could not
earn the allowance), could not properly be described as a deduction from wages.
Contractually the relevant employees had not earned the allowance. As the
Employment Appeal Tribunal said, their claim, properly framed, would, if they
could establish it, be for breach of contract for removing the opportunity to
earn that flying allowance.
15.
But in this case, what was being claimed, in the modern incarnation of
the ETTA, was an allowance. It crystallised its previous incarnation, which had
been an agreed form of payment to compensate for loss of opportunity to earn a
productivity bonus because of the time, otherwise available for productive
work, which was taken up by travelling. In our judgment, the Employment Tribunal
was right, as a matter of fact and degree, to conclude that, neither in its
original form, for its original purpose, nor in the modern form, could it
sensibly be said either to be a payment in respect of expenses, or something
which ought properly to be characterised as the potential subject of a claim in
the County Court for breach of contract. On either basis it was a contractual
allowance and not compensation for a breach of contract. If the Claimants were
right, and it was a wage or an emolument which ought properly to have been
paid, then it did fall within the part 2 regime.
16.
The Tribunal had to grapple with a second jurisdictional issue, which
has also been argued on this appeal as ground 1(b). That is to the effect that
the Employment Tribunal was being asked by the Claimants to do something which
was beyond their jurisdiction, namely to construe or interpret contractual
language, or to invent a term. The argument to this effect made before the
Employment Tribunal and before us was, to the extent that is correct in its
application to this case a soundly based proposition of law. We were referred
(as was the Employment Tribunal) to the decision of the Court of Appeal in Southern
Cross Healthcare Company Limited v Perkins and Ors [2010] EWCA Civ 1442.
That case concerned part 1 of the ERA, and, in particular, the right of an
employee to complain to the Employment Tribunal that the written statement of
employment terms did not contain the particulars which ought to have been
included pursuant to statute.
17.
It was in the context of that particular, and restricted, jurisdiction
that the Court of Appeal concluded, in a manner consistent with previous
authority, that the Tribunal has no jurisdiction to interpret the agreement – that
is a matter for the ordinary courts – still less that the Tribunal has
jurisdiction to amend the agreement. It may only amend the statutory statement
to ensure that it corresponds with the contractual agreement.
18.
There is some authority to which we have been referred, in particular Parker
v Northumbrian Water [2011] IRLR 652 EAT in which, by way of analogy,
it is suggested that the role of the Employment Tribunal in part 2,
adjudicating upon an alleged deduction of wages, can be no greater than the
jurisdiction of the Employment Tribunal in paragraph 1.
19.
At paragraph 7 of the Employment Tribunal’s decision, they dealt at some
length with this argument. They pointed out that an essential element of any
claim of unlawful deductions from wages is that the Claimants establish that the
relevant wages, about which a complaint of unlawful deduction is made, are
“properly payable”. They justify this by reference to section 13(3) of
the 1996 ERA, which provides:
“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 that 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.”
20.
The Tribunal therefore concluded that the exercise of its jurisdiction
under section 23 requires an assessment by the Tribunal of whether the
wages claimed for are “properly payable”. In our judgement that, as a plain
statement of what they were required to do, cannot be criticised, and indeed it
has not been criticised.
21.
The Tribunal went on to say that:
“[…] in our view, in this particular case, the task before the tribunal
is not to construe or interpret contractual language or indeed to embark on the
voyage of discovery which Mr Livesey describes it as constituting in terms of
establishing whether the Claimants are entitled to the wages which, by way of
non-payment, they contend have been deducted from the wages properly payable to
them. The claimants make claims for specific payments by way of ETTA which,
subject to proof of their entitlement, are precise in amount and which
therefore fall squarely within the scope of the unlawful deductions from wages
jurisdiction.”
22.
Then, a little further on:
“In our judgment, in this case, provided that the claimants can
establish that the ETTA payments to which their claims relate are ‘properly
payable’, then the relevant wages are clearly identified and quantified without
the need for further assessment and their non-payment therefore falls to be
justiciable under the unlawful deduction from wages jurisdiction of ERA 1996.
The ETTA payments (being precise monetary amounts referable to a specific rate
of payment and the number of days worked by the claimants) are specific and
quantified sums (although we return below to the issue of their precise
calculation). Therefore, we have no hesitation in holding that we have
jurisdiction to consider these unlawful deduction from wages claims [...].”
23.
Mr Livesey, in his able submissions, was constrained, in the course of
argument, to accept that there is nothing in paragraph 7 which he says
constitutes a misdirection by the Employment Tribunal of what they were
required to do; what they were permitted to do; and what they were forbidden
from doing; by reference to the statutory framework and the authorities to
which we have referred. His case is that, when the Tribunal went on to make
its findings of fact, it, in effect, invented a term and in so doing fell foul
of the prohibition identified in Southern Cross and the other
authorities.
24.
We now turn to that argument, which in essence encompasses paragraphs 3
and 4 of the grounds of appeal as enlarged in the skeleton. It is important
that we record at this stage that it is clear to us from a detailed reading of
this lengthy Employment Tribunal decision that the Employment Tribunal was
concerned to consider the evidence and make its findings of fact in relation to
each of the individual Claimants separately, and not to make findings of fact
about the workforce as a whole. The Employment Tribunal self-consciously was
considering a claim by each of the Claimants that there had been an omission to
pay the ETTA claims, which they had submitted to the Respondent, and which they
sought to quantify by reference to the claim forms, which they had to submit.
In effect, each such claim form identified the days worked and, for each day
worked, a number of hours (either 1 hour or 1½ hours) for which the ETTA claim
was being made. It was the failure to pay against that claim for a specific
number of days and for a specific number of hours that the complaint of
unlawful deduction was made.
25.
The Tribunal concluded, as a matter of fact, that each of the claims
succeeded by virtue, principally, of an express agreement and, as an
alternative, on the basis of what they found to be, in the case of each
individual Claimant, an implied term to be implied by virtue of custom and
practice.
26.
In relation to each of the individual Claimants, at paragraphs 37
through to 41, they made specific findings of fact. In each of them, their
findings of fact were that there had been an express agreement between the Claimant
and management that they should be paid an ETTA against the claim forms, in
some cases, in addition, they found that the express agreement was supported
evidentially by the conduct of management in paying against those claim forms
for a substantial period of time in the past.
27.
In our judgement, the Employment Tribunal, in each case, was entitled,
having considered the evidence of each Claimant and the other witnesses, to
conclude that the predecessors of the Appellant had, through their various
managers, agreed to make those payments by way of express agreement, or, by
their conduct in making payments against those claims, in some cases backdating
them, similarly agreed expressly by virtue of that conduct. In those
circumstances, it is in our judgement wrong to suggest that what the Tribunal
was doing was in any way interpreting, or inventing, a contract; it was simply
finding what the agreement was in circumstances where the Claimant provided the
information to the employer and the employer, acting on that information, and
applying (as was obviously the case) the standard hourly rate to that
information, made the ETTA payment as a matter of express contractual
agreement.
28.
In our judgement, there is no question of the Employment Tribunal
mistakenly going beyond the limits of their jurisdiction as identified in Southern
Cross, nor acting perversely in concluding that there were express
agreements. It is trite law that an express agreement need not be in writing;
it can be oral, and it can also be made by virtue of the conduct of the
parties. That can either be as an express agreement or it can be as an
agreement implied in the way described by Elias J (as he then was) in Solectron
Scotland Limited v Roper [2004] IRLR 4 at paragraphs 19 to 21, under
the heading: “Custom and Practice.” In that part of that judgment, there was
an argument put forward on behalf of the employer that there had been variation
in conduct. The EAT said in paragraph 21 as follows:
“We reject this argument and consider that it is based on a
misconception of the effect of custom and practice. A custom or established
practice applied with sufficient regularity may eventually become the source of
an implied contractual term. That occurs when the point is reached when the
courts are able to infer from the regular application of the practice that the
parties must be taken to have accepted that the practice has crystallised into
contractual rights.”
29.
The Employment Tribunal in the present case was confronted with an
argument mounted on behalf of the Claimants that the ETTA had become implied as
a matter of custom and practice. They were referred to, and referred themselves
extensively to, the leading authorities, including Albion Automotive v Walker [2002] EWCA Civ 946 CA, in which a series of relevant factors are set out,
as well as Duke v Reliance Systems [1982] IRLR 347 and Quinn
v Calder Materials [1996] IRLR 126. The Employment Tribunal in a
section of its decision, paragraph 21, set out its conclusions in respect of
each of those factors that had been identified in Walker and Mr Livesey
has mounted a series of criticisms of the Tribunal’s conclusions in respect of
those. We have to accept that a number of these criticisms, on the face of it,
seem to be reasonably well made.
30.
However, in our judgement that does not avail Mr Livesey in this
appeal, for two reasons. First, it is clear that the Employment Tribunal
decided this case, not on the basis of an implied term by way of custom and
practice, but principally on the basis of express agreements, which it found as
a matter of fact, and which, in our judgment, was an unassailable finding of
fact. Second, as we have already indicated, it is clear to us that this
Employment Tribunal were considering the question of whether, absent an express
agreement, the ETTA could be implied as a matter of custom and practice, not
across the workforce by reference to the long-ago collective bargaining
history, but by reference to the specific experience of each of the Claimants
when making a claim against the ETTA to one or other of the Appellant’s
predecessor operators of the undertaking. The evidence that they were relying
on included, evidence of conduct said to evidence express agreement, evidence
of direct express agreement, and evidence of regular practice over a
significant period of time such that this Employment Tribunal concluded the
parties must be taken to have accepted that the practice had crystallised into
contractual rights.
31.
Accordingly, in our judgement, the conclusion of the Employment Tribunal
as to the individual Claimants’ entitlements by way of contract, whether it be
by way of express agreement or an implied agreement by reason of custom and
practice in the individual cases, cannot be said to be a misapplication of the
law, let alone a perverse conclusion, in the light of the evidence.
Accordingly, in our judgement, neither grounds 3 nor 4 of the grounds of appeal
succeed.
32.
We interpose at this point to address ground 2, which we have not as yet
addressed, and which ought to be taken at this point. Ground 2 is an argument
that the Employment Tribunal erred as a matter of law in failing to conclude
that, when the Appellant took over the undertaking and identified that, as from
that date, their primary location would be a different one to that from which
they had previously worked - at Kings Road, but, in the longer term, Lea Hall,
it constituted an amendment to the ETTA allowance agreement by resetting the
trigger mechanism such that the ETTA would only be payable, in future, in the
event that the Claimants’ base moved from that which was now to be their “original
operating base”, namely Kings Road.
33.
That argument was addressed by the Tribunal in paragraph 31. The
Tribunal deals with it square-on in the following terms:
“Whilst the respondent may after it became the claimant’s [sic]
employer have ‘reset’ depots for the purposes of establishing the location at
which the relevant individuals were based for the contractual purpose of
identifying their place of employment, this cannot operate to affect the claimants’
pre-existing entitlement to ETTA, which is, after all, based on the fact that
they are not employed at the original depot at which they were based when they
commenced their original employment or agreement/practice to similar effect.
It was this historic arrangement which underpins the specific entitlement which
the claimants claim and the individuals remain entitled to the ETTA
entitlements notwithstanding the transfer of their employment to the respondent
under TUPE and any amendment to their base.”
34.
In our judgement, that cannot be faulted as a statement of the facts as
applied to the law, and, furthermore, the only document upon which the
Appellant seeks to base this argument was, by its own terms, inimical to the
argument that thereby the ETTA contractual allowance was being amended so as to
reset the trigger, henceforth to be the moving of the Claimants’ base from the Kings
Road facility where they would be primarily located. That is because the
letter relied upon by the Appellant, a letter dated 23 March 2008
entitled “Welcome to Mears Ltd”, is the letter that records the transfer of
their employments from the previous owner of the business, Morrisons, to Mears
Ltd, and says in terms:
“As discussed, the transfer is by virtue of […] (TUPE), which
means that your employment rights are protected and your Terms and Conditions
of Employment are unchanged from your existing contract save for the name of
your employer.
However, inevitably there will be some practical changes arising
from the transfer and I would like to draw your attention to the following
points: […]
Location
As advised at the group presentation, Kings Road will be our
primary location after 1st April. In the longer term we will
also be operating from Lea Hall. There will also be a limited number of staff
based at Waterlinks House, these will be the front line planning team.”
35.
That letter explicitly states that there is no change to the terms and
conditions of employment and identifies the change of location, not as a matter
of contractual obligation, but a matter of practical information. In our judgement,
it cannot be argued that, in the light of that letter, the Tribunal has
either erred in law or misapplied the facts to the law or come to a decision
that was perverse.
36.
We now turn to ground 5, which concerns quantification and gives rise to
a number of separate points. The first point is that it is said that the
Employment Tribunal exceeded its jurisdiction by making an award greater than
the sum that had been claimed. The statutory justification for this argument
is to be found in a combination of sections 23, 24 and 25. Section 23(1)
entitles a worker to present a complaint to an Employment Tribunal:
“(1) (a) that his employer has made a deduction
from his wages in contravention of section 13 [...].”
37.
Section 24 concerns determination
of complaints. It provides:
“(1) Where a tribunal finds a complaint under section 23
well-founded, it shall make a declaration to that effect and shall order the
employer—
(a) in the case of a complaint under section 23(1)(a), to pay to
the worker the amount of any deduction made in contravention of section 13 […].”
38.
Section 25 concerns determinations and deals with supplementary
provisions. It provides in sub-paragraph (1):
“(1) Where, in the case of any complaint under section 23(1)(a),
a tribunal finds that, although neither of the conditions set out in section
13(1)(a) and (b) were satisfied with respect to the whole amount of the
deduction, one of those conditions was satisfied with respect to any lesser
amount, the amount of the deduction shall for the purposes of section 24(a) be
treated as reduced by the amount with respect to which that condition was
satisfied.”
39.
The point made by Mr Livesey, which is on its face a simple and cogent
one, is that, while the statutory scheme envisages that a Tribunal may make an
order for payment either of the sum claimed as deducted, or a lesser sum, it
cannot make an order requiring the payment of a sum in excess of the sum
claimed as being deducted.
40.
The factual basis, which is said to support the contention that the
Employment Tribunal, in this case, erred in that respect, is said to be as
follows: in respect of four of the Claimants, at a stage fairly late in the
proceedings, namely at the start of what was intended to be the first hearing
of their claim at the Employment Tribunal, their solicitors, apparently
responding to an invitation by the Appellant, provided a schedule setting out
the amount of the sum claimed, and that schedule, in respect of four of the Claimants,
identified the number of hours and an hourly rate of £11 only. The Employment
Tribunal, at paragraph 35 of the decision, found, as a matter of fact (which is
not in contention), that the contractual rate payable in respect of their work
for each of the Claimants was £11.64 per hour. The amount awarded under the
claim in respect of each of those four Claimants was calculated at the rate of
£11.64 per hour.
41.
Mr Livesey makes a number of criticisms of that conclusion: first
of all, he says it is outwith the Tribunal’s powers; second, he says that this
is an instance of the Tribunal inventing a term by concluding that the
appropriate payment per hour was the contractual rate. The difficulty with
this argument, as we perceive it, is that the claim that was originally made by
the applicants at no stage identified what the hourly rate was. In fact the
claim, which was in a common form, simply complained of unlawful deduction from
wages in the circumstances briefly described, seeking a declaration and
compensation accordingly. Thus the claim form did not identify either the
amount or the number of hours claimed for. The figure of £11 an hour, in our
judgement, came about as a form of evidence produced by solicitors in the form
of a schedule, but, as such, it was not, itself, part of the claim.
Accordingly, the Employment Tribunal, by making the award by reference to the
contractual hourly rate, cannot be said to have acted outwith its jurisdiction,
because the claim itself was never quantified in that way.
42.
Secondly, it is, in our judgement, wrong to suggest that the Employment
Tribunal was in any way inventing a term or part of a term by concluding that
the payments should be at the standard contractual rate. There was ample
evidence before them that claims that had been made had been paid out and that
the obvious and inevitable hourly rate being claimed and paid was the
contractual rate. That was a finding that they were fully entitled to make,
and which they did make, and which formed the basis of their quantification of
their awards.
43.
The next argument concerns the quantification of each individual claim
Mr Livesey makes some points of detail which though not at the heart of
the argument are nonetheless worthy to be dealt with. In connection with the Claimant
Mr Taylor, there is no complaint made of the quantification by the Employment
Tribunal of the sum claimed.
44.
In the case of Ms King, there was (as Mr Livesey has pointed out) a
discrepancy between the number of hours claimed for in April 2008, as set out
in the schedule produced by the solicitors, in comparison with the actual claim
forms submitted by her at the time. In fact, the solicitor’s schedule
identifies 21 hours during that month, whereas the claim forms themselves
identify only 20. Mr Brockley, for the Claimants, in our judgement sensibly,
accepts that this was a slip on the part of the Employment Tribunal and that
the appropriate measure for quantification should have been, by reference to
April 2008, 20 hours rather than 21 hours. To that extent, in our judgement,
Mr Livesey has made good his point. The quantification in that case in
that respect is wrong. We must (in respect of Ms King’s case) uphold the appeal
and substitute for the sum awarded, £4,164.12, a sum that is £11.64 less, namely
£4,152.48.
45.
In respect of Mr Aziz, the complaint is made that Mr Aziz supported his
claim by providing timesheets only for two of the months during the period he
was claiming for, from April 2008 to March 2010. That is right as a matter of
fact. The Tribunal, in the case of Mr Aziz, at paragraph 41, observed that was
so, but stated:
“Otherwise we are satisfied that Mr Aziz’s evidence is correct
as to the days Mr Aziz worked and for which he claims ETTA.”
46.
That is a clear finding of fact on the ground of credibility, which, in
our judgement, the Employment Tribunal was entitled to make, and in our
judgment an argument based upon the inadequacy of Mr Aziz’s paperwork, in
the light of that finding of fact, cannot succeed by way of an appeal.
47.
In respect of the two other Claimants, Mr Salt and Mr Harvey, the claims
for ETTA that they made were for 1½ hours per day, as distinct from the other Claimants,
who were claiming one hour per day. But in respect of each of Mr Salt and Mr
Harvey, the Tribunal made (in paragraphs 38 and 39) explicit findings of fact
that the change to 1½ hours in their cases arose when they moved to a different
depot. As a finding of fact based on the evidence, the Employment Tribunal was
entitled to find in their favour to that extent and that ground of appeal does
not succeed.
48.
In connection with Mr Harvey, it is pointed out, correctly, that he had
submitted timesheets for some months, April 2008 and June 2008, which were in
duplicate – two timesheets for each of those months – and those timesheets
claimed different numbers of hours. In April he claimed both for 34½ and 33
hours and in June he claimed both for 18 hours and 31½ hours. Those matters
were, as a matter of record, recorded by the Tribunal at paragraph 39 in their decision
and, in respect of each of those duplications, the Tribunal awarded (as we
understand their decision) the lower of the two numbers of hours. Mr Livesey
was not of a mind to argue that was wrong and that they should have awarded
Mr Harvey more than those figures. What he says is it casts doubt upon the
accuracy of Mr Harvey’s other paperwork such that the Employment Tribunal should
not have accepted his evidence otherwise.
49.
The Employment Tribunal addressed this question in the last sentence of
paragraph 39 where they said:
“Otherwise, we are satisfied that Mr Harvey’s evidence is
correct as to the days which Mr Harvey worked and for which he claims
ETTA.”
50.
That is a finding of fact on the basis of the credibility of a witness
and, in our judgement, it cannot be impeached. Even though the Employment
Tribunal did not deal specifically and explicitly with the argument of Mr
Livesey referred to above, in our judgment that is a “fine-tooth-comb” point. It
is, in our judgment clear that the Employment Tribunal in dealing with the
point in the way it did would inevitably have taken into account that which was
contained in the skeleton argument before them which was, no doubt, amplified
in oral argument.
Conclusion
51.
The upshot of that is that, in our judgement, save to the limited extent
to which we have referred in the claim of Ms King, the appeal of the Appellant
must be dismissed.
