United Kingdom Employment Appeal Tribunal

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URL: http://www.bailii.org/uk/cases/UKEAT/2012/0571_11_1004.html
Cite as: [2012] UKEAT 0571_11_1004, [2012] UKEAT 571_11_1004, [2012] ICR 1171

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Appeal No. UKEAT/0571/11/SM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 10 April 2012

Before

HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

GILGROVE LTD AND C&C FRUIT AND VEG LTD APPELLANTS

MR G HAY & OTHERS RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellants

MR OLIVER SEGAL

(One of Her Majesty’s Counsel)

MR DESHPAL PANESAR

(of Counsel)

Instructed by:

RBS Mentor Services

Litigation Department

2^nd Floor, Sapphire West

550 Streetsbrook Road

Solihull

B91 1QY

For the Respondents

MR BEN COOPER

(of Counsel)

Instructed by:

Messrs Pattinson & Brewer Solicitors

Albert House

1-4 Singer Street

London

EC2A 4BQ

SUMMARY

UNLAWFUL DEDUCTION FROM WAGES

CONTRACT OF EMPLOYMENT – Incorporation into contract

By a 1974 collective agreement, incorporated into the contracts of employment of Covent Garden Market porters, “porterage” is charged to customers by employers for produce moved by porters. It is payable and distributed in equal shares to their porters whether registered or not. “Porter” means a person employed as a porter. This is a question of law. Employment Judge’s decision reversed and claims dismissed.

HIS HONOUR JUDGE McMULLEN QC

Introduction

1. The most famous fictional bass baritone to be heard in Covent Garden is surely Alfred P Doolittle, immortalised by Stanley Holloway in My Fair Lady. He was most concerned about the passage of time and ways of making money. The Claimants in this case work as porters in the Market and show an equally keen sense of right. Mr Oliver Segal QC and Mr Ben Cooper, wordsmiths of the first water and worthy successors to Professor Henry Higgins, have combined to produce 30 pages of argument on the meaning of “porter”.

2. Formally, this case is about unlawful deductions from pay contrary to Part II of the Employment Rights Act 1996. I will refer to the parties as the Claimants and the Respondents. I will use the illustration of the Claimants Mr Hay, Mr Watson and Mr Allen, all of whom work for Gilgrove Ltd; Mr Mole and Mr Hurst are Claimants working for C&C Fruit & Veg Ltd, but the circumstances of the two sets of employees are the same.

3. It is an appeal by the employers in those proceedings against a reserved Judgment of Employment Judge Tsamados, sitting for a day and then a day in private, at London South, sent to the parties on 12 July 2011. The Claimants were represented by counsel, and today by different counsel, as I have said; the Respondents were represented by Mr Panesar, who today is led by Mr Segal. The Claimants claimed that they had received less pay than that to which they were entitled and this constituted an unauthorised deduction from pay. The Respondents contended that they were making payments in accordance with the written formulation between the parties.

The issue

4. The Judge set out the issues in paragraph 8 of his Judgment. The essential issue was the construction of the contract. He decided in favour of the Claimants. In due course a remedy hearing was conducted, at which the Gilgrove Claimants were awarded sums of roughly £6,900 and the C&C Claimants were awarded, respectively, £16,000- and £14,000-odd. The Respondents appeal. Directions sending this to a full hearing were given on the sift by Langstaff P, whose view which I shared with counsel was that the grounds appear arguable on the basis that “registered porter” is a phrase used elsewhere in the agreement than in clause 5, to which I will return. As it transpired at this hearing, that point is not taken approach - the case has gone off on different grounds.

The legislation

5. The legislation is not in dispute. Section 13 of the Act entitles an employee to be paid the agreed rate of pay, and a deduction from what is agreed is unauthorised and remediable at an Employment Tribunal. Such cases are heard by a Judge alone, but the Tribunal may be constituted as a three‑person Tribunal. As a matter of statute, such Judgments are heard on appeal by a Judge‑alone unless an EAT Judge decides there should be a tripartite Tribunal (see section 28 of the Employment Tribunals Act 1996). So, customarily, the default position on an authorised deduction claim is for it to be heard by an Employment Judge and on appeal by an EAT Judge, sitting alone in both cases.

The facts

6. The Claimants work at New Covent Garden Market, Nine Elms, South west London, to which the old Covent Garden Market in the centre of London moved on 11 November 1974. Their proud conditions are enshrined in a collective agreement made between their union, then known as the Transport and General Workers’ Union, and the employers on the Market, and this agreement contains clauses, on the one hand, relating to procedures for resolving disputes and, on the other, substantive terms and conditions of employment. The agreement is terminable on the giving of three months’ notice. The agreement came into effect on the date of the move and was terminated in early 2009 by notice. However, as the Judge correctly noted, applying the Judgment of the Court of Appeal in Marley v Forward Trust Group Ltd [1986] IRLR 369, terms and conditions applying in any individual contract incorporated from the collective agreement live on. As I understand it, a three‑year deal was done affecting the group of workers covered by the agreement, and they are still subject to that.

7. The Judge heard evidence from Mr Watts, the Secretary of Unite, who had previously been a porter, and from Mr Ashley, the leading light in Gilgrove. The Respondents are fruit and vegetable importers. They bring produce to New Covent Garden Market and their customers buy it. They pay whatever the rate agreed is for the produce, and they also pay for the transportation of the produce onto their own vehicles. That is called porterage, because it is paid for portering. The Judge considered it was somewhat analogous to tips. The net effect of the basic wage and the porterage is this: the Claimants received basic pay, £240 or £290 per week depending on whether they worked days or nights. On top, for the Gilgrove Claimants, the best example I have is £720 a week in porterage, paid to the porters within the group, giving each about £550 a week.

8. The division in this case is as to the Claimants on the one hand, who are registered porters and who attract the payments of basic and porterage, and, on the other hand, those who are not registered porters. They get a basic pay of £500 a week and no additional payment of porterage; broadly speaking, therefore, the distance between them is about £50 a week. In the Gilgrove group are three Claimants who are registered and one, not a Claimant, who is not a registered porter.

9. Where does this distinction come from? The collective agreement has a number of features. It is not a legally binding agreement. I have yet to see one that is, and by statute from just before the signing of this agreement all collective agreements were presumed to be not legally enforceable. Usually they are referred to by the acronym TINALEA, and so, faithful to that principle, following so shortly on the heels of the opposite presumption in the Industrial Relations Act 1971, is the express disavowal of legal enforceability. But the normative effect of such an agreement is incorporation into individual contracts, and it is agreed that so far as is apt the agreement is incorporated into these contracts of employment.

10. The relevant terms are included in a document first concluded in 1961, but it appears to date back at least to 1955, which sets out a schedule of porterage; this is agreed between the employers and the union and provides as follows:

“2. The porterage rates set out in the Schedule shall be paid by the employer into a porterage pool for all the porters employed by him in respect of all produce covered by Clause 3 (xiii) of the Joint Trade Agreement.”

11. There then follow a number of weights and measures for determining how much the handling of a particular product will generate. In the 1974 agreement made between the same parties the objects are defined as, “Ways of regulating the affairs of people covered by the Agreement”, and “safeguarding development and general improvements of the terms and conditions of employment”. The subject of the dispute is clause 5, which deals with porterage, and it says the following:

“The employer shall be responsible for the payment of porterage as per the agreed porterage schedule, which shall be shared in equal parts between the foreman, porters and temporary porters (if any) employed on the stand (or stands where mutually agreed to extend the porterage to cover such stands) on the basis of the number of days in attendance.”

12. Elsewhere in this agreement there is reference to adjectives applied to porters: registered, temporary, permanent, and foreman. However, it is agreed by both counsel that there is no distinction to be drawn in the document itself between references to porters and registered porters. At the time the agreement was made there were no non‑registered porters, or, perhaps to put it more accurately, since “non‑registered porter” does not arise in any document, it is correct to say all the porters were registered.

13. Registration takes two forms. One is in the hands of the Market landlord, who ensures health and safety matters, and this requires registration with the superintendent. True it is there is a significant trade union element in the registration. This has ceased; the landlord no longer requires people working on the Market to be registered. However, a different system of registration, which is relevant to the dispute, is provided by the agreement itself, and it says this:

“20. Registration Committee

(a) There shall be a Registration Committee appointed by and answerable to the Joint Negotiating Committee, consisting of two nominees from the Tenant’s Association and two nominees from the Trade Union, such nominees shall hold office for a period not exceeding one year, but may be eligible for further nomination, also the Liaison Officer acting as Secretary.

(b) Each man applying for registration shall be vetted by the Committee and in the event of a failure to agree, the matter shall be referred to the Joint Negotiating Committee for disposal by whatever means agreed upon.

This card shall be carried at all times when in the Market, and shall be produced upon request of any member of the Registration Committee, or a representative of the Tenants or Trade Union. Registration cards must also be produced on request to the uniformed staff of the Covent Garden Market Authority.

The card shall contain the name and address of the Registered Porter in full, also the employers [sic] name and address, and the Porter’s registration number. If the Porter moves from one Employer to another, a new card with the relevant details will be exchanged for the original by the Liaison Officer.

(d) The first registration card shall be valid until 31st December, 1975, and thereafter will be renewed in the first week of January each year.

(e) Registration cards are not transferable and will be surrendered to the Liaison Officer upon leaving employment as a registered Porter.”

14. Next in sequence and, according to Mr Segal, integrally related to it is paragraph 21, which deals with trade union membership, and says as follows:

“21. Trade Union Membership

It shall be a condition of employment that all employees covered by this agreement will be members of the 1/440 branch of the Transport and General Workers’ Union.”

15. Of further assistance are references to the duties of a porter in clause 2, which is, as one would expect, to load vehicles and so on, and to clean up around the Market. The principle that, I hold, is enshrined in this agreement is that those loading customers’ vehicles are paid porterage shared between them on an equitable basis. The question is whether a person who is not registered under the collective agreement is entitled to participate in that. All parties agree on the way in which the agreement operated up to 2009. The Judge found that registration continued to be a part of the terms and conditions of those affected by this agreement, since, despite its termination by the employers, individual terms lived on. So it is that the Claimants in these cases were entitled to continuation of their right to porterage based upon the nature and weight of the produce they shifted and the days they attended. It is clear that porterage was directed to those who would do the work by reference to the disentitlement of someone who is not there on the day and the entitlement of a person known as a temporary porter, or temporary‑registered porter, who does attend on that day and does the work.

16. The issue of trade union membership arose in this case because it was contended at one stage that there may be a breach of section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 in that there may have been differential terms detrimental to those who are non‑members. That is not an issue today. It is common ground that membership of Unite is not a condition of employment of any of the Claimants in this case; they are, in fact, all members, but the term relating to the closed shop is, as it is engagingly put by counsel to me, one that no longer exists. One does not know quite how it disappeared, but it is no longer an enforceable term at, one assumes, the suit of an employer to demand trade union membership. On the other hand, registration by the joint committee is still live, although there are, as this case illustrates, non‑registered porters.

17. The Judge decided that the proper interpretation of the porterage scheme was that it applied only to registered porters, and so, in a simple case like the Gilgrove trio, if the porterage on a particular shipment was worth £100, there being three registered porters, they would receive £33.33; however, if there were four, including a non‑registered porter, as there were, they would receive £25. That was claimed to be the unauthorised deduction not authorised by the agreement.

18. Broadly speaking, this case is being watched by quite a lot of people. There are 100 porters on the Market, 25 wholesalers, and 2,500 employees. As can be seen by the awards in this case, there are substantial differences in pay according to the correct approach adopted.

The legal principles

19. Sadly, counsel could not agree the most elementary principle to be applied in this case. What is my task? Mr Segal QC contends that the approach is simply one of construction, which is a question of law. Mr Cooper says this is a contract which includes matters beyond the written words and in what he says is an evolving framework including events in the latter part of 2009‑2010. I should deal with this first, for without the correct approach a Judge is likely to go wrong. This is an appeal to a Judge in a specialist jurisdiction from a Judge in a specialist jurisdiction. The approach indicated to me in two commercial cases seems to produce the established answer. In Pilgrim Shipping Co v State Trading Co of India [1975] 1 LR 356 a majority of the Court of Appeal (Roskill LJ and Sir John Pennycuick, Lord Denning MR dissenting) indicating that, there being a question of construction, there was only a question of law. Lord Denning was concerned that the parties to the shipping contract had stipulated that their disputes should be settled by commercial men:

“If there was a dispute as to its interpretation, they wanted it to be interpreted by commercial men, for they would be more likely to give it the right interpretation […]. Perhaps they knew the weakness of lawyers; they are too apt to go for the literal meaning.”

20. The other two members of the Court had no difficulty in establishing that a question of construction is one of law, and therefore Judges should decide the matter. The Court may attend to the views of, for example, specialist arbitrators, but not when it comes to the construction of plain words of a document. Bingham J, as he then was, in André & Cie v Cook Industries Inc [1986] 2 Ll R 200 was concerned about whether a Judge should differ from a specialist opinion given in what I have to say is a field unknown to me; that is, a board and a board of appeal under GAFTA, and he said this:

“I should be very slow to differ from a trade tribunal on the meaning reasonably to be given to telex exchanges of the sort in issue here. Ultimately, of course, the construction of any written instrument is a question of law on which the Court is entitled and bound to rule, but the significance of a meaning attributed by the reasonable non-lawyer varies widely from instrument to instrument and according to the circumstances of the case. Here one is dealing with communications by trader to trader in the context of an unexpected and fast-moving situation. A trade tribunal brings to the task of interpretation certain insights denied (to a greater or lesser extent) to the Court: an informed appreciation of the commercial situation as it unfolded, seen through the eyes of a trader; an understanding of the hopes and fears and pressures which moved traders at the time; an awareness of the extent to which, at the time, the future course of events appeared obscure and unpredictable; a knowledge of the language which one trader habitually uses to another. So, in a case such as this the Court’s task is not one of pure construction and I should be reluctant to differ from the board unless it appeared that the board’s construction was fairly plainly untenable.”

21. In my judgment, the correct approach to a pure question of construction of a document is to interpret it in accordance with the law; it is a legal question only. Is there any difference in employment contracts? In Carmichael and Anor v National Power PLC [1999] ICR 1226 Hoffmann LJ, giving a Judgment with whom Lords Jauncey and Goff agreed, considered whether the existence of some words in a sparse contract of engagement were indeed words only amenable to a legal construction, or whether they were wider. Lord Hoffmann said this:

“The difficulties which have arisen in this area are, I think, attributable to the historical origin of the distinction in trial by jury and the pragmatic way in which the courts have applied it. In his Hamlyn Lectures on Trial by Jury (1956), Lord Devlin said (at p. 61):

‘The questions of law which are for the judge fall into two categories: first, there are questions which cannot be correctly answered except by someone who is skilled in the law; secondly, there are questions of fact which lawyers have decided that judges can answer better than juries.’

Included in the second category is the construction of documents in their natural and ordinary meaning. […]

I would prefer the construction adopted by the industrial tribunal to that of the majority in the Court of Appeal. But I think that the Court of Appeal pushed the rule about the construction of documents too far. It applies in cases in which the parties intend all the terms of their contract (apart from any implied by law) to be contained in a document or documents. On the other hand, it does not apply when the intention of the parties, objectively ascertained, has to be gathered partly from documents but also from oral exchanges and conduct. In the latter case, the terms of the contract are a question of fact. […]

Putting the matter at its lowest, I think that it was open to the industrial tribunal to find, as a fact, that the parties did not intend the letters to be the sole record of their agreement but intended that it should be contained partly in the letters, partly in oral exchanges at the interviews or elsewhere and partly left to evolve by conduct as time went on. This would not be untypical of agreements by which people are engaged to do work, whether as employees or otherwise. […]

On this basis, the ascertainment of the terms of the agreement was a question of fact with which the Employment Appeal Tribunal were right not to interfere. The tribunal took into account the language of the letters (see paragraph 5(f) of their extended reasons, in which they underlined the words "on a casual as required basis" and said that they were "important to note") but they also took into account the subsequent conduct of the parties, some of which pointed to employment and some of which did not, and the evidence of both the respondents and Mr Lovatt for the C.E.G.B. as to what they had understood their respective obligations to be. Ward L.J. said, at p. 1185G that was a mistake. The terms of the contract must be objectively construed. ‘What they thought they had achieved is of no consequence’. Chadwick LJ likewise said, at p. 1194B, that ‘the question was not what the parties thought their obligations were’. This austere rule would be orthodox doctrine in a case in which the terms of the contract had been reduced to writing.”

22. It seems to me therefore that the distinction to be drawn is as to the ascertainment of a term and its meaning. Where one party says, “This is not what we agreed; there was another discussion”, or another letter, then it is for the court to decide as a matter of fact whether that existed; were those words said or written? Was there something more than appeared on the paper? These are questions of fact. However, what the words mean is a question of law, of course seen within the context of what a reasonable person fastened with the knowledge of the parties would have decided (see the deathless enunciation of principles, given again by Lord Hoffmann, in Investors’ Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 HL at pages 912H‑913E, which I do not rehearse in this Judgment, they being too well known).

23. Finally in this sequence of the authorities submitted to me by both Mr Segal and Mr Cooper is Autoclenz v Belcher & Ors [2011] ICR 1157. Here Clarke LJ considered the Judgments in the Court of Appeal and said this:

“20. The essential question in each case is what were the terms of the agreement. The position under the ordinary law of contract is clear. It was correctly summarised thus by Aikens LJ in the Court of Appeal:

‘87. […] Express contracts (as opposed to those implied from conduct) can be oral, in writing or a mixture of both. Where the terms are put in writing by the parties and it is not alleged that there are any additional oral terms to it, then those written terms will, at least prima facie represent the whole of the parties' agreement. Ordinarily the parties are bound by those terms where a party has signed the contract: see eg L'Estrange v F Graucob Ltd [1934] 2 KB 394. If a party has not signed a contract, then there are the usual issues as to whether he was made sufficiently aware of the clauses for a court to be able to conclude that he agreed to the terms in them. That is not an issue in this case.

88. Once it is established that the written terms of the contract were agreed, it is not possible to imply terms into a contract that are inconsistent with its express terms. The only way it can be argued that a contract contains a term which is inconsistent with one of its express terms is to allege that the written terms do not accurately reflect the true agreement of the parties.

89. Generally, if a party to a contract claims that a written term does not accurately reflect what was agreed between the parties, the allegation is that there was a continuing common intention to agree another term, which intention was outwardly manifested but, because of a mistake (usually a common mistake of the parties, but it can be a unilateral one) the contract inaccurately recorded what was agreed. If such a case is made out, a court may grant rectification of a contract. See, generally, the discussion in the speech of Lord Hoffmann, [48] to [66], in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC 1101 with whom all the other law lords agreed. […]’

21. Nothing in this judgment is intended in any way to alter those principles, which apply to ordinary contracts and, in particular, to commercial contracts. There is, however, a body of case law in the context of employment contracts in which a different approach has been taken. Again, Aikens LJ put it correctly in the remainder of para 89 as follows:

‘But in cases of contracts concerning work and services, where one party alleges that the written contract terms do not accurately reflect the true agreement of the parties, rectification principles are not in point, because it is not generally alleged that there was a mistake in setting out the contract terms as they were. There may be several reasons why the written terms do not accurately reflect what the parties actually agreed. But in each case the question the court has to answer is: what contractual terms did the parties actually agree?’”

24. Taking an astringent approach to these authorities, it is plain that the construction of collective agreements is no different from the construction of other contractual documents. The court often has to decide as between two equally tenable meanings. In my judgment, once the terms have been identified, the meaning of them is a question of law. In this case, there is nothing new beyond the agreement that was made in 1974 and incorporated into the Claimants’ contracts, as to porter and porterage. The question is whether or not the word “porter” means only “registered porter”.

“21. The court is not concerned to investigate the subjective intentions of the parties to an argument (which may not have coincided anyway). Its task is to elicit the parties' objective intentions from the language which they used. The starting point is that the parties meant what they said and said what they meant. But an agreement is not made in a vacuum and should not be construed as if it had been. Just as the true meaning and effect of a mediaeval charter may be heavily dependent on understanding the historical, geographical, social and legal background known to the parties at the time, so must a more modern instrument be construed in its factual setting as known to the parties at the time. Where the meaning of an agreement is clear beyond argument, the factual setting will have little or no bearing on construction; but to construe an agreement in its factual setting is a proper, because a common-sense, approach to construction, and it is not necessary to find an agreement ambiguous before following it.

22. On the facts here, it was a collective agreement which was incorporated into the contracts of the individual plaintiffs. A collective agreement has special characteristics, being made between an employer or employers' organisation on one side and a trade union or trade unions representative of employees on the other, usually following a negotiation. Thus it represents an industrial bargain, and probably represents a compromise between the conflicting aims of the parties, or 'sides' as in this context they are revealingly called. But despite these special characteristics, a collective agreement must be construed like any other, giving a fair meaning to the words used in the factual context (known to the parties) which gave rise to the agreement.

23. A literal reading of the language of the plaintiffs' contracts yields the construction for which the plaintiffs contended and which the judge upheld. If every pilot on becoming a BA employee is a 'new entrant', and that rule permits of no exceptions in any circumstances, it must follow as the night the day that all the B Cal pilots were 'new entrants'. They should all therefore have gone to the bottom of the BA seniority list; since they all joined on 1 April 1988 they should have been added in order of age, not rank or service; and the seniority of those born on the same day should have been determined by ballot.

24. Read literally, the agreement can be held to apply even on a merger of large-scale airline operations. But there is nothing in the language of the agreement to suggest that the parties intended it to apply in such an event. There is, equally, nothing in the language of the agreement to suggest that they did not. It may be that the parties to the agreement did not direct their minds to the possibility of a merger such as this. It is permissible to ask whether the parties can reasonably be supposed to have intended the agreement to apply in such an event.

25. BA cannot, at the date of the collective agreement, be credited with foreknowledge of the specific problems described in section IV above. But it had in the past been involved in mergers; it knew of difficulties which could arise in relation to the seniority of pilots on such mergers; and it must have contemplated the possibility of future mergers with other airlines either here or abroad. It would be very surprising if BA had intended to bind itself so as to be obliged to choose between accepting consequences which would be foreseeably absurd and giving its pilots a right of veto redeemable, if at all, only at a potentially high price.”

Discussion

26. The submission of Mr Segal is that I should be concerned to construe the meaning of the porterage clause, clause 5, in the context in which it was understood when it was made by the parties. The timing is important (1974). What happened thereafter can be a guide to what the correct meaning is (see Neufeld [2009] IRLR 475 CA where Rimer LJ, upholding my Judgment in the EAT, concluded that the actions of the parties in relation to the performance of the contract can be used as a guide to the correct meaning of the contract). In this case it is argued that several things have to be brought into account in the construction. They are: the lapsing of the closed shop, at a date no one seems to know; the entitlement of women to be employed where this agreement deals only with men; and the ability of employers to employ people on their own terms, not regulated by the remainder of the collective agreement at least for new starters, and for them not to be registered.

27. The juxtaposition was put by Mr Segal in this way. There is no doubt as to the term to be construed. In 1974 all porters who were registered were men and were members of the TGWU. The question for the court is: in the distribution of porterage, to porters, are porters who are not registered included or not? As both counsel agree, what has to be decided here is what did the parties mean by a term as it applied to a situation that no one envisaged at the time. No one envisaged you could work at the Market without being in the union or without being registered, and yet both have occurred, as the facts in this case bear out. I accept that in some circumstances there is an evolving relationship. An agreement may have its terms varied by what happens in due course, but that is not the case here.

28. The issue is: what was the meaning of “porter” and “porterage” in 1974? The answer to this lies in interpretation; that is, a question of law. There is no search for more terms or different terms to rectify the terms. On the document itself the word is “porter”. The fourth man in Gilgrove is a porter. That is an easy answer: he should get the porterage, and the porterage should be divided by four – that is, the three Claimants and the fourth man

29. In deference to the arguments that have been put to me I will look more closely. To do so, it is necessary to look at the intention of the parties when they signed this agreement, and what the purpose was. In my judgment, the close relationship between the weights and measures and the entitlement to be paid porterage comes from the fact that men lift the produce. They get a basic wage, which is comparatively low, and make it up by way of porterage from charges levied to the customers. The operative part of this clause is “porter”. A person who performs the duties of a porter is to be given money for so doing. This is plain from the fact that someone who is absent through illness gets nothing that day, and a person who comes in as a temporary porter to do the work does. The purpose therefore is to reward those who do the heavy lifting, and it seems to me that there is no distinction between those who are registered and unregistered.

30. Thus the fact that there can be employment without registration and without trade union membership is not relevant. What the parties were doing was seeking to provide a system of piecework; of payment by results as Mr Segal submits. The more loaded onto a customer’s truck, the more porterage there would be; the fewer the men doing it, the more they would share, but faithful to the agreement in equal parts. There were no porters who were not registered at the time; the parties, in my judgment, were turning their mind to the duties performed by the porters as set out in the agreement rather than whether or not they were registered or, for that matter, trade union members.

31. Mr Cooper expressly abandoned the submission that this is to be solved by implication of a term under the officious bystander test. The question, as he finally submitted it, is whether a reasonable person with all the information available to the parties would have decided that the parties meant the porterage money to be distributed amongst those who did the portering or only those who did so and were registered. The Employment Judge made a Judgment that is entitled, of course, to great respect, he being a Judge in London South judging employment terms and conditions in the heart of the region and having heard the live evidence. But after a day of legal argument, I respectfully disagree with him. The intention and purpose of this agreement was to reward the work done rather than the person’s qualification when doing it, and I prefer the argument of Mr Segal and Mr Panesar. The correct construction of clause 5 is as they argue.

Disposal

32. It follows that I would set aside the Judgment of Judge Tsamados, and the issue is whether I should decide it myself. Having canvassed the issue with counsel, it is their joint position that the matter can be decided by me today rather than by remission. It is not Mr Cooper’s case that there was omission by the Judge to make relevant factual findings; on the material that is extant before the Judge, the decision is easy, and, as I have, I hope, said, this is a matter of construction that will get no better if it is sent back to a Judge. So, bearing in mind that joint position of counsel and the factors in Sinclair Roche & Temperley v Heard [2004] IRLR 763, there is no utility in sending this to a Judge, and I will now dismiss the appeal and the Claimants’ claims.

33. Permission to appeal to the Court of Appeal refused [for reasons not transcribed].