APPEARANCES
| For the Appellant |
MR MOHAMMED HAY
(of Counsel)
Instructed by:
Beecham Peacock Solicitors
(Employment Law Dept)
7 Collingwood Street
Newcastle Upon Tyne NE1 1JE |
| For the Respondent |
MR GUY BEALEY
(Consultant)
Peninsula Business Services Ltd
Riverside
New Bailey Street
Manchester M3 5PB |
SUMMARY
Unfair Dismissal: Automatically Unfair Reasons; Working Time Regulations: Holiday Pay & Health & Safety
The five Appellants appealed against the Tribunal's decision that none of them had been automatically unfairly dismissed for health and safety reasons and three of them had not been dismissed at all but had resigned on protest at the dismissal of the other two – which dismissal the Tribunal found to be for refusing to attend their work site at the contractual time. One Appellant appealed against the rejection of his holiday pay claim.
Held:
(i) an amendment to the Notice of Appeal to allow reliance on s100(i)(c) for the first time at EAT level would not be permitted; s100(i)(c) raised a new case with new factual issues.
(ii) The Tribunal's findings were not perverse or otherwise based on error of law.
(iii) The holiday pay claim failed because a sufficient payment had been made; that payment could not have been a payment in lieu of notice because the employee had not been dismissed but resigned; the payment was referable to holiday pay.
HIS HONOUR JUDGE BURKE QC
The Appeal
- This is an appeal from the judgment of the Employment Tribunal sitting at Bedford, chaired by Mr Willans and sent to the parties with written reasons on 29 March 2005. By that decision the Employment Tribunal dismissed the claims of five employees, Barry Griffiths, Paul Griffiths, David Griffiths (three brothers), Anthony Chambers and Mark Paddock that they had been automatically unfairly dismissed for what are familiarly called "health and safety reasons" by their employers, Perco Engineering Services Ltd ("Perco"). The Tribunal also dismissed claims in respect of unlawful deduction of wages made by Mr Chambers and Mr Paddock, claims that Barry Griffiths and Paul Griffiths had been dismissed for asserting a statutory right and claims that there were breaches of the Working Time Regulations and breaches of contract.
- At the preliminary hearing of this appeal, on 15 September 2005, the EAT, presided over by HHJ Ansell, ordered that only the appeal against the Tribunal's decision as to unfair dismissal and, in the case of Mr Chambers and possibly Mr Paddock, against the Tribunal's decision as to holiday pay, should proceed to a full hearing. The employees' appeals against all other aspects of the Tribunal's decision were dismissed.
- We propose to set out, in so far as relevant, the facts and the Tribunal's conclusions, to turn then to the dismissal issue and finally to address the holiday pay issue.
- Mr Hay of Counsel appeared before us on behalf of the Appellants; Mr Bealey, an employment consultant, appeared on behalf of the Respondents. We are grateful to both for their submissions and to Mr Hay for his tenacious presentation of his clients' cases.
The Facts
- All five employees live in the North East of England. They were all employed by Perco, whose base is in Northampton, for less than a year before their contracts of employment terminated late in June 2004. They formed part of a team or gang which, the Tribunal found, travelled the length and breadth of the country working on sites for Perco. Barry Griffiths was the foreman. The Tribunal found, as fact, at paragraphs 5.2, 5.7 and 5.13 of the judgment, that the employees' contract of employment required them so to work and that they were obliged under their contract to start work at 7.30 am at the site to which they were directed. Their working week was one of 45 hours, normally on Mondays to Fridays. Travel time was not included in that working week. The Tribunal found (paragraph 5.7) that the men preferred not to work at weekends and that that was acceptable to Perco as long as the 45 hours were put in during the week.
- Shortly before the events which led to the end of the employment relationship between Perco and the five Claimants, Mr Chambers' father died while he was away working. He was permitted to go home; he was paid for the day although he had only worked part of it. He was then off work for four days for which he was not paid. He raised this non-payment as a grievance by letter.
- On Monday 21 June 2004, the team was required by Perco to work on a site in Exeter, which involved seven or eight hours travelling from Tyneside. Perco were willing to pay overnight expenses so that the team could travel down to Exeter on the day before; but the men chose not to do so; the Tribunal found that they "in effect refused" and after driving for eight hours to Exeter, reached the site at 12.30 pm. It was Barry Griffiths' case, as set out in his Originating Application, that he had made his concerns about travelling long distances to start work at 7.30 am on a Monday morning clear to Perco in April 2004, pointing out that it was unsafe to start work on the Monday morning directly after a long drive and asking if Perco would pay travelling time or for Sunday night lodgings. It was his case that Perco had declined those requests. There is, however, no assertion in his Originating Application that he drew to Perco's attention concerns about travelling to the Exeter site on 21 June 2004; and the Tribunal found that Perco did, on that occasion, offer to pay overnight expenses. It was Barry Griffiths' view that it was unreasonable and would have put the health and safety of himself and the other men at risk if they had driven to Exeter, started work at 7.30 and then done a 10 hour working shift on site.
- On the following Friday, the employees were required to attend a meeting with Mr Fallon, Perco's contract manager, and Mr Houghton, a director. Barry Griffiths and Paul Griffiths were called into the office. What happened is set out at paragraph 5.3 of the Tribunal's judgment. In summary Mr Fallon said that the two brothers were finished; at the prompting of Mr Houghton to say more, Mr Fallon said that there was a shortage of work and Perco had to let the two men go. Mr Houghton then said that Perco knew that it was Barry Griffiths who had composed Mr Chambers's grievance letter. The conversation continued as follows:
"BG 'So that is what this is all about?'
AF 'Yes and other issues'
BG 'Our refusal to make the 7.30am Monday start when working down at Exeter?'"
Mr Houghton just shrugged his shoulders but did not respond: and Mr Fallon asked the two men to leave. The meeting lasted no more than four minutes.
- The other three employees went into the office; they were told that they should go on the following Monday at 7.30 to the job to which Barry Griffiths and Paul Griffiths had originally been detailed. David Griffiths said that he regarded that as wholly unreasonable; his brother had just been dismissed ostensibly because of a shortage of work; and the 7.30 start was regarded as unreasonable. All three employees decided to resign and so informed Perco on the following Monday morning.
- It was Barry Griffiths' case that he had been dismissed because he was the elected representative of the men in the team in respect of health and safety and that Perco had recognised him as such and that he had objected to the 7.30 am start for health and safety reasons. The Tribunal found, however, at paragraph 5.5 that, although as foreman Barry Griffiths had a duty to mention matters of concern to his employers and may have been a spokesman in his capacity as foreman of a gang, he was not an elected representative, nor a representative recognised as such by the employers.
- Perco's case was that Barry Griffiths and Paul Griffiths were dismissed because of shortage of work. The Tribunal found as fact that this was not the reason for their dismissal, particularly in the light of the fact that the three other men were asked to work at the site at which Barry Griffiths and Paul Griffiths had been expected to work on the following Monday. They found that Barry Griffiths was dismissed because he had helped Mr Chambers to compose the grievance letter and because of his refusal to make a 7.30 am start on the Exeter site; see paragraph 5.10 and 8.2. The Tribunal further found that neither the Chambers' grievance nor the refusal to make a 7.30 am Monday start on the Exeter site related to health and safety issues and, at paragraph 5.12, that neither Barry nor Paul Griffiths had been dismissed for any reason to do with health and safety matters.
- At paragraph 8.3 the Tribunal said that they could not determine the reason for Paul Griffiths' dismissal.
- On the basis of the above findings, the Tribunal rejected the unfair dismissal claims of Barry Griffiths and Paul Griffiths. As to the unfair dismissal claims of the other men, which we necessarily claims based on alleged constructive dismissal, the Tribunal found that they resigned of their own volition in response to the dismissal of their colleagues and not for any reason to do with health and safety matters; see paragraphs 5.4 5.12 and 8.5. The Tribunal further said at paragraph 8.5 that the resignations were not in response to any breach, express or implied, of their contracts of employment on the part of Perco (although since they all had less than one year's employment, it would not have helped them if they had resigned as a result of any such breach unless the reason or principal reason for their dismissal was an automatically unfair reason).
THE DISMISSAL ISSUE
The Law
- Although, of course, in a standard unfair dismissal case, it is for the employer to show a potentially fair reason for the dismissal (see s98(1) of the Employment Rights Act 1996) Mr Hay accepted that, where a Claimant relies on an automatically unfair reason for dismissal, as did all the Claimants in this case, it is for him to establish that the reason on which he relies was the reason, or if there is more than one reason, the principal reason for the dismissal.
- S100(1) of the Employment Rights Act 1996 provides as follows:
"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—
(a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities,
(b) being a representative of workers on matters of health and safety at work or member of a safety committee—
(i) in accordance with arrangements established under or by virtue of any enactment, or
(ii) by reason of being acknowledged as such by the employer,
the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee,
(ba) the employee took part (or proposed to take part) in consultation with the employer pursuant to the Health and Safety (Consultation with Employees) Regulations 1996 or in an election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise),
(c) being an employee at a place where—
(i) there was no such representative or safety committee, or
(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,
he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,
(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or
(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger".
- It is to be noted that subparagraph (d) of that section specifically provides for cases in which an employee leaves or proposes to leave or refuses to return to work. If an employee is dismissed for or principally for so acting, his dismissal will be automatically unfair if he reasonably believes that there was serious or imminent danger. It has not been suggested that subparagraph (d) applied or could have applied in this case. Similarly, no reliance was placed on subparagraph (e); and subparagraphs (a) and (ba) are not relevant.
- Subparagraph (b) renders the dismissal of an employee automatically unfair if the following conditions are satisfied, namely that:
(1) The employee was, at the time of the dismissal, either a representative of workers on matters of health and safety or a member of a safety committee;
(2) He held that position either in accordance with arrangements established under or by virtue of an enactment or by reason of being acknowledged as such by the employer;
(3) He performed or proposed to perform any function as such a representative or as a member of such a committee; or
(4) the reason or principal reason for his dismissal was his acting as in (3).
- For reasons to which we will come, it is necessary to set out the conditions which must be satisfied where subparagraph (c) is relied upon; for they are very different. To succeed under subparagraph (c) an employee must show that -
(1) he was an employee at a place where either there was no representative of workers on matters of health and safety or safety committee or there was such a representative or safety committee, but it was not reasonably practicable for the employee to raise the matter by those means;
(2) he brought to his employer's attention by reasonable means circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety;
(3) the reason or principal reason for his dismissal was his acting as in (2).
- Mr Hay drew our attention to the provenance of s100, namely the Directive of the Council of the European Communities on the introduction of measures to encourage improvements in the safety and the health of workers at work, 89/391/EEC (familiarly known as the "Framework Directive"). He submitted, and we accept, that, as the preamble and Article 1 of the Directive show, the purpose of the Directive was to improve health and safety at work and to ensure a better level of protection for workers. We are familiar with the obligations imposed on Member States by Articles 6-12 and imposed upon workers by Article 13. As a result of the Framework Directive, there are, as is well-known, many statutory instruments which contain important safety principles and rules relating to different activities at and in relation to the work place and to the management and arrangement of work. The Management of Health and Safety At Work Regulations 1999 SI 1999/3242, is one such statutory instrument; Mr Hay referred us to Regulation 3 which sets out detailed obligations upon employers and self-employed persons in respect of the carrying out of risk assessments and to Regulation 5 which requires employers to make and give effect to appropriate preventative and protective measures. Breaches of such regulations are regularly relied upon, either as giving rise to an independent cause of action or evidentially,in personal injury cases; and we recognise their importance in advancing and improving the health and safety of work-places and of employees and workers at work. We accept that what is now s100 of the 1996 Act was introduced into domestic law in 1993 in order to comply with the Framework Directive.
- Mr Hay reminded us of these provisions because, he submitted, it is necessary in a s100 case to avoid an over-restrictive approach to the application of the section and to construe and apply the words of the section liberally so as to ensure that the purposes of the Framework Directive are met. We agree that, when questions of construction of s100 arise, a Court of Tribunal may well wish to and should consider the purposes of the Framework Directive and, if possible, seek to further them. That does not mean, however, that in order to achieve a particular result, a construction can be adopted which is inconsistent with the words enacted by Parliament. In any event, for reasons which will become clear later in this judgment, no question of construction arises on this appeal.
The Amended Notice of Appeal
- The Notice of Appeal, in its original form, dated 10 May 2005, was amended on 24 June 2005; that amendment took place pursuant to an order made on 27 May 2005 by HHJ Birtles that the appeal be stayed "to allow the Appellant to lodge an amended Notice of Appeal setting out all the grounds of appeal". The amendments, in so far as relevant, added a new ground 13 which is as follows:
"13. The Employment Tribunal failed to give a decision that gave a sufficient account of the facts and reasoning that allowed the Appellants to know whether any question of law arises. Further, the Tribunal failed to give reasons consistent with the oral and documentary evidence".
In the event, Mr Hay did not seek to argue that the reasons given by the Tribunal were inadequate. We mention this amendment because, at an early stage of the hearing of the appeal, Mr Hay applied to make substantial further amendments to the Notice of Appeal, which application Mr Bealey, on behalf of Perco, resisted on a number of grounds, including that the employees had already amended their Notice of Appeal once and were ordered when doing so to set out in the amended Notice of Appeal all their grounds of appeal and that they should not now be allowed "a further bite of the cherry".
- Mr Hay's application came about because his attention was drawn to the fact that the substantive contents of the Notice of Appeal on the dismissal issue (as opposed to the general complaints in paragraph 9 which Mr Hay agreed could not stand alone and were particularised in the following paragraphs) firstly concentrated on s44 of the 1996 Act (being subjected to detriment on health and safety grounds during the course of employment and other than by way of dismissal), s104 of the Act (dismissal for asserting a statutory right) and the Working Time Regulations 1998 when Mr Hay's Skeleton Argument and the arguments he wished to put forward in support of the appeal addressed the Tribunal's conclusions not on any of those provisions (the attack on which, if pursued at the preliminary hearing, did not survive that hearing) but on their conclusion that the employees had not been dismissed for a reason or principal reason falling within s100 and, secondly, did not contain any ground which asserted, as Mr Hay's Skeleton asserted and was clearly going to make a focus of his submissions, that the Tribunal should have considered the case before them not on the basis of s100(1)(b) – as they plainly did – but on the basis of s100(1)(c). Mr Hay confirmed to us that his principal submissions were (1) that the Tribunal should have considered the case under s100(1)(c) and not (b), (2) on the evidence, no reasonable Tribunal could have come to a conclusion other than the dismissal of the employees fell within s100(1)(c); and (3) the Tribunal made the errors referred to in paragraphs 18-20 of the Notice of Appeal.
- We expressed our concern that there was no reference in the Notice of Appeal either to a perversity argument or to an argument that the Tribunal had approached the s100 issue by failing to consider s100(1)(c) and wrongly considered s100(1)(b). That was the context in which Mr Hay sought permission to further amend the Notice of Appeal; he sought to add five new paragraphs, numbered 1(a)-(e) of which (d) was sub-divided into three subparagraphs. He also sought to amend paragraph 10(e) of the amended Notice of Appeal by adding a reference to s100 of the 1996 Act to the references there set out.
- Mr Bealey opposed these amendments and, in particular, the introduction of s100(1)(c); he informed us that the case put before the Tribunal on behalf of all the employees by Mr Barry Griffiths, who said he was an experienced trade union representative, was that he was an elected representative in matters of health and safety and that he had been recognised as such by Perco. Mr Griffiths had relied on s100(1)(b) and had never raised s100(1)(c) on his own behalf or on behalf of the other employees. Relying on Chapman v Simon [1994] IRLR 124, Mr Bealey submitted that the employees could not now be permitted to put their cases forward in a wholly different way which had not been advanced below and which would require factual findings by the Tribunal as to whether the employees or any of them did fall within s100(1)(c), which findings the Tribunal had not been asked to, and did not, consider. As to the other amendments, Mr Bealey objected that they were too late, raised new points at a late stage and did so after the employees had been given an opportunity to perfect their Notice of Appeal by the order of HHJ Birtles.
- Mr Hay responded that the s100(1)(c) point should, especially in the case of unrepresented employees, have been taken up and considered by the Tribunal, there being sufficient in the employees' Originating Applications to bring them within, or at least open up consideration of, s100(1)(c). While acknowledging the ratio of Jones v The Governing Body of Burdett Coutts School [1999] ICR 38, to which we had drawn the parties' attention, he submitted that the principle there established did not apply in the circumstances of this case: and he relied on Capek v Lincolnshire City Council [2000] IRLR 590.
- Having deliberated, we informed the parties that we would not permit Mr Hay to amend the Notice of Appeal so as to raise the s100(1)(c) issue, but we would allow him to amend paragraph 10(b) of the Notice of Appeal so as to refer to s100(1)(b); of the five proposed new subparagraphs which Mr Hay sought to add, it appeared to us that (a) was now included within the amended paragraph 10(b) and (b) and (c) were already included within paragraph 13 of the amended Notice of Appeal. Mr Hay confirmed our understanding that (d) addressed the paragraphs 100(1)(c) issue; and (e) simply repeated paragraph 14 of the existing Notice of Appeal. Thus, no further amendment was necessary. Because there was some doubt as to whether the Notice of Appeal covered perversity and although it was arguable that any perversity point was not properly particularised in compliance with paragraph 2.6 of the EAT Practice Direction of 2004, we indicated that we would permit Mr Hay to argue perversity. So as to press on with the hearing, already delayed as it was by the argument about amendment, we said that we would give our reasons for those decisions in our judgment. It is only necessary to do so in relation to the s100(1)(c) point; for we did not deprive Mr Hay of the opportunity of arguing anything else that he wished to argue.
- In the narrative section of his Originating Application, Barry Griffiths described how, in April 2004, he and Mr Fallon had discussed Perco's requirement that the men should be on site at 7.30 am on Monday mornings. He claimed that he told Mr Fallon that, in the absence of payment of lodging allowance or travelling time, to start at 7.30 am was unreasonable and unsafe. He said that he thus spoke to Mr Fallon as "an experienced operator and the elected representative of the men". He stated that the company knew that he was the men's representative and, indeed, he was singled out for dismissal because he was their representative. He did not allege that, after that conversation, there had been any complaint or expression of concern by any of the men about starting at 7.30 on the Exeter site. Paul Griffiths relied on Barry Griffiths' Originating Application and did not suggest that he had himself taken any steps to express any concern about the 7.30 Monday starts in general or at Exeter in particular. David Griffiths said, in his Originating Application, that the team were concerned about the Monday 7.30 starts and that Barry Griffiths had put their points to Perco "in his position as charge hand and representative". He made no suggestion that he had expressed any concern to Perco himself. Mr Paddock and Mr Chambers relied on the Originating Applications of Barry and David Griffiths.
- The Tribunal's findings of fact, which we have earlier summarised, show that the employees' case must have been put forward on the basis of the narrative in the Originating Applications: Mr Bealey, who had the advantage of being present before the Tribunal (an advantage which Mr Hay did not have) told us that the employees' witness statements followed the Originating Applications.
- It is wholly clear, in our judgment, that Barry Griffiths was putting himself forward as an elected representative of the men who was accepted as such by Perco and that the Tribunal, when they made findings of fact as to whether Barry Griffiths was what he claimed to be, did so because that was the way in which the case was put before them. How the other four employees were going to succeed on the basis that Barry Griffiths fell within s100(1)(b), it is not possible to say; when we moved on to substantive submissions after our decision on the amendment issue, Mr Hay, at the very conclusion of his argument and in answer to a question from us, accepted that they could not have succeeded under s100(1)(b). On the other hand, no evidence was adduced to suggest that they were or any of them was an employee at a place where there was no representative or that any one of them (other than Barry Griffiths who claimed to do so as a representative) brought to Perco's attention any question relating to health and safety arising from the start at the Exeter site or any other site. Thus, the Tribunal's attention was directed to s100(1)(b) and not to s100(1)(c). If s100(1)(c) were to be opened up at this stage, it would be necessary to remit the case for the Tribunal to decide, on further evidence, whether in the case of any of the employees the first two conditions for success under s100(1)(c), which conditions we have set out at paragraph 18 of this judgment above, were satisfied on the facts.
- In Chapman v Simon the Court of Appeal allowed an appeal by the employers against the Employment Tribunal's finding that the employers had been guilty of race discrimination. The Tribunal had found that the employers were guilty of such discrimination in a manner of which the employee had not complained; the Court of Appeal held that the Tribunal should have confined themselves to the specific complaints of discrimination which the employee had put forward in her Originating Application. Mr Hay submitted that this decision was of no direct relevance to the present case; it related to the correct approach to individual complaints of discrimination at the Tribunal level and, more significantly, it did not concern the raising of new points on appeal. We agree that, save in so far as it highlights the need for an applicant to a Tribunal to adhere to his case as set out in his Originating Application, unless leave to amend is given (see per Peter Gibson LJ at paragraph 44), Chapman v Simon is not a decision as to what should happen at an appellate stage when a new point is raised.
- Capek v Lincolnshire City Council was a case of a very different nature. Mr Capek was suspended by his employers for over a year until his ultimate dismissal; during that period he brought proceedings in the Tribunal for unpaid salary, claiming that the Counsel's failure to pay was a breach of contract. The Tribunal of their own motion took the jurisdictional point that the proceedings had been brought prematurely because they were presented before the effective date of termination of the contract of employment – see Article 7A of the Industrial Tribunal's (Extension of Jurisdiction) Order 1994 (SI 1994/1623); and the Tribunal, for that reason, rejected the breach of contract claim. Mr Capek's subsequent presentation of a new Originating Application putting forward the same claim was also dismissed as being out of time. The Employment Appeal Tribunal reversed the Tribunal's decision as to the original claim; the Court of Appeal agreed with the Tribunal as to their jurisdiction under the 1994 order; but it was held that, having decided that there was no such jurisdiction, the Tribunal should have gone on to consider whether it had jurisdiction to deal with the same claims under the Wages Act 1996. Mummery LJ, with whom Laws and Pill LJJ agreed, said:
"Mr Capek contends that is the essence of his remaining breach of contract claims. He submits that the Tribunal did not lack jurisdiction to determine that claim simply because he labelled his complaint as 'breaches of contract' rather than 'unauthorised deduction of wages contrary to the Wages Act'. A failure to attach the correct label or all the correct labels to the facts relied on in the Originating Application does not deprive the Employment Tribunal of jurisdiction which it may have to determine a complaint. In my judgment this point was not adequately considered by the Employment Tribunal. In the extended reasons of 10 October 1994 the Tribunal rejected Mr Capek's 'fresh application' to add a Wages Act claim to his five existing applications (see paragraph 1 of the extended reasons) but the possibility that his existing breach of contract claims were in substance claims which the Tribunal had jurisdiction to entertain under the Wages Act was not considered".
- Mr Hay relied on this authority as establishing that the Tribunal must not be deflected by the label attached by an employee to his claim and must look at the merits and consider whether his claim can be put in other ways, especially when the employee is unrepresented. However, Capek is, in our judgment, not directly applicable to this case. It is well established that a salary claim can, subject to time and other jurisdictional limits, be advanced in a Tribunal as a breach of contract claim or as a claim under the Wages Act; in our experience claimants to the Tribunal often do not specify which statutory provision is relied upon in such a case; typically, the distinction is of no importance. Capek was a clear example of the correct approach to mislabelling, but the present case is, as we see it, not a case of mislabelling at all. The factual assertions made by Barry Griffiths in his Originating Application were consistent only with his case being put wholly on the basis of s100(1)(b). There was nothing in his Originating Application or the Originating Application to the other employees which supported a different factual case falling within s100(1)(c); on the contrary all asserted, by adopting Barry Griffiths' Originating Application, that he was an elected representative approved as such by Perco. The Tribunal were not, in these circumstances, required to investigate a factually different case which had never been advanced and to make findings as to whether the conditions for success under s100(1)(c) were satisfied on the facts.
- In Jones v Governing Body of Burdett Coutts School [1998] IRLR 521, Robert Walker LJ, with whom Morritt and Stuart-Smith LJJ agreed, said, at page 44A:
"These authorities show that, although the Appeal Tribunal has a discretion to allow a new point of law to be raised or a conceded point to be reopened, the discretion should be exercised only in exceptional circumstances, especially if the result would be to open up fresh issues of fact which because the point was not in issue, were not sufficiently investigated before the Industrial Tribunal".
For the reasons we have set out, if we were to exercise our discretion to permit the employees now to raise s100(1)(c), fresh issues of fact would inevitably be raised which were not investigated or sufficiently investigated before the Tribunal. We could not possibly determine such issues of fact; and a reinvestigation of facts would be unfairly prejudicial to Perco. We could see no basis for concluding that this was one of the exceptional classes of case in which the raising of a new point of appeal should be permitted.
- For these reasons, we rejected the application to amend the Notice of Appeal to raise the s100(1)(c) issue. We should add that we also had in our minds the fact that there appeared to be little prospect of eventual success under s100(1)(c) in any event. We will come to that later in this judgment.
The Substantive Submissions
- We have already set out Mr Hay's submissions as to the origins of s100 and how we should approach the construction of s100 in the light of those origins. Mr Hay next submitted that the Tribunal, in deciding whether the dismissals fell within s100, ought to have treated the provisions of the contract between the employees and Perco as irrelevant and ought to have concentrated on whether the reason or principal reason for the dismissal fell within s100(1)(b). We do not agree. In order to decide upon the reason for dismissal, it was important for the Tribunal to identify what the terms of the contract of employment provided and, in particular, whether or not pursuant to those contracts the employees were required to be ready to work at the Exeter site at 7.30 am, whether the travelling time was included within their working week and whether the men were entitled to spend the weekend at home without having to leave before the weekend ended in order to travel to Exeter. If the employees could not be required to be at Exeter by 7.30 am on the Monday or if travelling time counted towards their working week, it might have been less likely that, in so far as they were dismissed, the reason or principal reason for their dismissal or one of the reasons for their dismissal would be their failure to attend at Exeter until much later in the day. It was open to the Tribunal to regard the contractual provisions as relevant to and as part of the factual material upon which they reached their decisions as to the reason or reasons for dismissal.
- Mr Hay next developed what he accepted was, in effect, his perversity argument. He submitted that the Tribunal ought to have looked to the real reason behind the men's refusal to be on site at 7.30 on the Monday, that being their concern that they were at risk if they worked a full shift on that day without a break after a long drive. He submitted that they were entitled contractually to remain at home until midnight on Sunday; they were entitled therefore, if they chose, to reject Perco's offer of payment for an overnight stay on Sunday night, to travel down to Exeter on Monday morning and to start on site after 7.30 if they so wished and then to fit in their contractual 45 hours during the rest of the week. In other words, Mr Hay accepted, the men were, as he was contending, contractually entitled to a flexi-time arrangement, at least in respect of Monday morning; as long as they worked 45 hours from when they started, they fulfilled their obligations. The Tribunal should so have concluded, Mr Hay submitted, applying to s100 the liberal approach to which we have already referred.
- We accept that there were or may have been factual issues as to whether the men were contractually required to start at Exeter at 7.30 on the Monday morning and whether they were contractually entitled not to be required to leave home before the end of Sunday night. However, the Tribunal resolved any such issues by finding that the men were required to start on site at Exeter at 7.30 am and were not entitled to stay at home as they wished, if that led to an inability to start on site on time. At paragraph 5.2 the Tribunal found, as we have earlier recited, that the contract of employment provided for a start time of 7.30 am and that that referred not to Perco's base at Northampton, but to an on-site start (there had, Mr Bealey told us, been some suggestion that the 7.30 start time referred to Northampton). At paragraph 5.7 the Tribunal again found as a fact that the contract provided for a 7.30 am start. They went on to set out how Perco insisted that the men should be ready to start on site at Exeter at 7.30 and that the men in effect refused to do so and arrived at 12.30. At paragraph 5.10 the Tribunal found as fact that Barry Griffiths was dismissed both for helping Mr Chambers to compose his grievance letter and for refusing to start on the Exeter site at 7.30. Mr Hay accepted, that to get round these clear findings of fact, he had to establish his flexi-time point.
- At paragraph 5.7 the Tribunal record Mr Fallon's acceptance that when the men were working away from home, they preferred to have their weekends free. That, of course, was only natural; but the Tribunal did not find that the men were entitled to have their weekend free or that they were entitled to travel when they liked and to arrive on site as they chose on Mondays as long as they completed their 45 hours during the week. They found that the men's contractual obligation was to be ready to start on site at 7.30 am. Mr Hay suggested that if the employees had a preference as to their weekends, there was under the contract a discretion which they could exercise not to attend at 7.30; but the Tribunal did not find that there was any contractual discretion or that what is expressed as the men's preference was in some way a contractual entitlement. On the contrary, the Tribunal addressed this issue specifically at paragraph 5.13 and concluded that the contract provided for a 7.30 am start in preference to the flexi-time argument.
- We do not see any basis on which any of the Tribunal's findings to which we have referred could properly be said to have been perverse or an error of law. It is not in dispute that the employer's evidence was, as foreshadowed in their response, that the men were contractually required to be at Exeter at 7.30 am and were offered overnight allowance for the Sunday night so as to enable them to get to the site without travelling through the night. There was evidence before the Tribunal which supported the Tribunal's findings – indeed, Mr Hay did not contend to the contrary. No overwhelming case that the Tribunal had reached a decision which no reasonable Tribunal could reach is made out (see Yeboah v Crofton [2002] IRLR 664). The Tribunal's findings were findings which it was open to them to reach. No question as to the construction of s100 arises; it does not seem to us that a liberal approach to the construction of s100 can affect our analysis or assist the employees' position.
- Mr Hay next submitted that the Tribunal should have accepted that Barry Griffiths was a safety representative. He reminded us that s100(1)(b) contains the words "the employee performed (or proposed to perform) any functions as such a representative". These words, however, refer not to the definition of a representative but to the reason for the dismissal. The reason or principal reason for dismissal will fall within s100(1)(b) if it is that the employee performed any of his functions (however slight) as a representative; but it is still necessary for the employee to establish, if he is to bring himself within s100(1)(b), that he was a representative of workers on matters of health and safety at work (or a member of the safety committee). Perco disputed that he was such a representative; and the Tribunal found as a fact, as they were entitled to do, that he was not such a representative. This submission, too, does not succeed.
- For these reasons we do not accept Mr Hay's criticisms of the Tribunal's decision. In any event (1) Mr Hay accepted, albeit at a late stage, that only Barry Griffiths could bring himself within s100(1)(b). (2) The Tribunal found as fact that health and safety concerns were not the reason for the dismissal of Barry Griffiths and that, although they did not find – and did not need to find – what was the reason for Paul Griffiths' dismissal, he too was not dismissed for any reason to do with health and safety matters (paragraphs 5.10 and 5.12). (3) The remaining three employees were found not to have been dismissed but to have resigned because of the treatment by Perco of Barry and Paul Griffiths. Mr Hay submitted that Perco had been in fundamental breach of contract by insisting that they were on site at 7.30 after a long drive and then work a full shift; but the findings of fact are wholly contrary to the assertion of such a breach; that argument could only get off the ground if Mr Hay's flexi-time point were to succeed; and even then, it would be obvious, if there was such a fundamental breach, that the men did not resign in consequence of it. They worked a full week without reservation and decided to resign only after Barry Griffiths and Paul Griffiths had been dismissed and they had been detailed to take over their work; see paragraphs 5.4 and 5.12. Mr Hay did not put forward any submissions to suggest that the Tribunal's findings as to that sequence of events were in error or perverse.
- For these reasons it seems to us to be clear that even if Mr Hay's submissions succeeded, such success would not result in the allowing of this appeal.
- Finally, we feel it right to point out that, if the Tribunal had considered s100(i)(c), it appears to us highly likely and indeed almost inevitable that the Tribunal would have reached the same result. We see no reason to suppose that the Tribunal's decision, given their findings of fact on the issue of the reason or principal reason for the dismissal of Barry Griffiths and Paul Griffiths, would have been other than that which they reached; and in the case of the other three men, the same applies; the finding that they resigned because of what had happened to their colleagues would not have been in any way affected if s100(1)(c) had been in issue.
Holiday Pay
- The appeal against the Tribunal's decision on holiday pay was pursued before us only in respect of Mr Chambers, in whose case the Tribunal concluded at paragraph 5.13, in these terms:
"The evidence before the Tribunal was that Chambers was paid for one of the four days that he was off work on bereavement leave and in so far as the holiday pay was concerned at the end of his employment, he having resigned, he was paid for a week which the Respondent regarded as his holiday pay entitlement."
- Mr Hay makes two points. The first was that the Tribunal erred in law in treating pay in lieu of notice as holiday pay and/or failed to explain how such a payment could be regarded as satisfying an obligation to pay accrued holiday pay. The second was that the Tribunal could not regard the payment made by Perco to Mr Chambers as satisfying such an obligation without calculating how much holiday pay was due, how much was paid and whether payment of the latter was sufficient to meet the obligation to pay the former; yet there were no such calculations in the Tribunal's decision.
- The Tribunal do not, in their judgment describe the payment made by Mr Chambers as pay in lieu of notice. The suggestion that it might be so described comes from paragraph 15 of Perco's response in Mr Chambers' case where it is averred that Perco gave Mr Chambers a week's pay "in lieu of notice as a gesture of goodwill to which he was not entitled" and that that payment "more than covered any accrued holiday entitlement". Mr Bealey told us that at the Tribunal he explained that the reference to pay in lieu of notice was an error and that the payment had been made in respect of holiday pay; and that had been Perco's evidence. That is, no doubt, why the Tribunal made no reference to pay in lieu of notice.
- There was, of course, no call for any payment in lieu of notice to Mr Chambers. Mr Chambers resigned; he was not dismissed; no question of notice or of payment of damages or compensation for failure on Perco's part to give contractual notice (which is the true juridical nature of what is usually called payment in lieu of notice) arose. Perco's response does not suggest such a payment but an ex gratia payment which, if referable to holiday pay, could go to extinguish any entitlement to holiday pay. The Tribunal expressly found that Perco regarded the payment as Mr Chambers' holiday pay entitlement. Mr Hay did not submit that, on the basis of an ex gratia payment, that was not a sufficient finding to enable the payment to be treated as meeting any holiday pay obligation. Thus, Mr Hay's first point fails.
- Mr Hay's second point initially appeared to be attractive. Mr Chambers was employed by Perco from 26 January to 21 June 2004, for, say, five months. Under regulations 13 and 14 of the Working Time Regulations, he would in that period have become entitled on the termination of his employment to 5/12ths of four weeks' pay (excluding subsistence allowance). Rapid calculations before us showed that, if paid a full week's pay on resignation, Mr Chambers might still be owed a sum of between £150 and £300. There is no doubt that the Tribunal did not embark on a calculation of what was due to Mr Chambers by way of holiday pay or a comparison between that sum and the sum actually paid to him; and it seemed to us that we might have to consider remitting Mr Chambers' holiday pay to the Tribunal to consider the figures – a wholly disproportionate exercise – or perhaps "grasping the nettle" and arriving at the correct sum ourselves.
- However, the reasons for the absence in the Tribunal's judgment of any reference to the actual figures soon became clear. Mr Bealey explained to us, without objection from Mr Hay, that it had been Perco's evidence that a week's pay was paid to Mr Chambers specifically to cover holiday pay and any other outstanding monies due to him and that that was more than enough because Mr Chambers had already had five days of paid holiday prior to his resignation. The five days were specifically identified from Perco's records. That had been put to Mr Chambers who did not disagree; Mr Chambers' point (perhaps encouraged by paragraph 15 of the Response and no doubt taken on his behalf by Mr Barry Griffiths) was that the payment made to him was not holiday pay at all. He did not suggest that the payment was insufficient to meet Perco's obligations in respect of holiday pay if the payment was referable to holiday pay.
- Mr Hay had not sought and did not have any notes of evidence to dispute Mr Bealey's account and did not challenge it. The reason that there was no calculation of the holiday pay due is that it was not Mr Chambers' case that, if the sum paid to him was to be treated as holiday pay, it was insufficient; it was that sum was not to be treated as holiday pay at all. The Tribunal found against him on that issue; we see no basis on which the Tribunal's finding can be said to have been in error of law. Accordingly, Mr Hay's second argument fails.
Conclusion
- For the reasons we have set out this appeal, both in relation to dismissal and, in Mr Chambers's case, in relation to holiday pay, fails and is dismissed.
