SUMMARY
WORKING TIME REGULATIONS
VICTIMISATION DISCRIMINATION –
Whistleblowing
1. The Claimant was a “mobile worker”
to whom the Road Transport (Working Time) Regulations 2005 (“the RTR”)
applied. The Tribunal did not consider the RTR; and if it had considered the
RTR ought to have found that the Claimant was correct in asserting that if the
Respondent required him to work a “period of availability” it was not entitled
to require him to stay in the depot: definitions of “period of availability”,
“working time” and “workstation” in reg. 2 applied.
2. The Tribunal ought to have
considered whether the Claimant, when he raised this issue with his manager,
made a protected disclosure: see section 43C(1)(a) of the Employment Rights
Act 1996. Moreover, although disclosure to VOSA was not protected by
virtue of section 43C, it might potentially be protected by virtue of section
43G.
3. The Tribunal did not make
adequate findings to address the Claimant’s case under section 100(1)(c) of the
Employment Rights Act 1996.
4. The Tribunal’s findings
concerning the principal reason for dismissal were vitiated by its
misunderstanding of the RTR and its failure to make adequate findings to deal
with the Claimant’s case under section 100(1)(c).
5. Section 101A and section 45A of
the Employment Rights Act 1996 do not extend to contraventions of or
rights conferred by the RTR; no process of interpretation can add the RTR to
section 101A(2) and section 45A(5).
Appeal allowed. Case remitted for
re-hearing.
HIS HONOUR JUDGE RICHARDSON
1.
This is an appeal by Mr Peter Ross (“the Claimant”) against a judgment
of the Employment Tribunal sitting in Liverpool (Employment Judge Robinson
presiding) dated 30 November 2009. By its judgment the Tribunal dismissed all
the claims which he made against his former employer Eddie Stobart Ltd (“the
Respondent”).
2.
As we shall see, the Claimant worked for the Respondent as an HGV driver
from 30 June 2008 until his dismissal on 16 April 2009. As an HGV driver he
was a “mobile worker” to whom the Road Transport (Working Time) Regulations
2005 (“the RTR”) applied. The Tribunal did not refer to the RTR in their
reasons, but it was common ground before us that they were applicable. We
shall return to them later.
3.
At the time of his dismissal he had less than one year of service. He
therefore did not have the requisite period of service for claiming unfair dismissal
unless he could bring himself within certain specific provisions of Part X of
the Employment Rights Act 1996.
4.
The Claimant represented himself at the Tribunal. The Tribunal
identified the following provisions of Part X as potentially applicable to a
complaint of unfair dismissal where no qualifying period was required:
(a) section 100 (dismissal for health and safety reasons)
(b) section 103A (dismissal for what is commonly known as
“whistleblowing”)
(c) section 101A (dismissal for reasons relating to working time)
Additionally the Claimant made complaints concerning weekly and
night time working and rest breaks.
5.
These were the complaints which the Tribunal dismissed.
The background facts
6.
The Claimant started work with effect from 30 June 2008. He worked out
of the Respondent’s Appleton depot, near Warrington. He passed his
probationary period of 13 weeks successfully.
7.
The Respondent’s case was that it began to receive complaints about the
Claimant from managers and customers. The complaints fell into two main
categories.
8.
Firstly, there were complaints that the Claimant took too much time in
various respects – especially when getting his vehicle ready to leave the
depot. It was alleged that on one occasion he said that he was doing so in order
to wait for a canteen to open. These complaints relate to dates between
January and March 2009. Secondly, there were complaints over an alleged poor
and obstructive attitude. The earliest allegation of this kind related to 27
January.
9.
At the end of March the Claimant was required to stay in the depot for 3
days and not go out on the road because he had worked too many hours over a 17
week period. These days were 31 March, 1 April and 2 April.
10.
Although the Tribunal does not cite it, it is important to set out a
passage from the witness statement of the Respondent’s manager, Mr Simpson, who
dealt with this matter. He said:
“We conduct continual reviews of driver’s hours to ensure that
we are in full compliance with the regulations on driver’s hours. The ultimate
responsibility under the regulations do rest with the employee although we do
all we can to monitor the hours worked and to assist all our drivers in
complying with the regulations. All hours worked for all drivers are entered
into a spreadsheet which provides a week on week average over 17 weeks of hours
worked. From time to time this process will identify a driver who has in fact
exceeded his average working hours. This was the case for Mr Ross at the end
of March 2009 which resulted in him having to spend 3 days or so on “period of
availability” within the depot; in effect this meant that he did no work during
that time.”
11.
There was, as the Tribunal put it, “some discussion” between the
Claimant and Mr Simpson as to whether, during these 3 days, he could be
required to remain on site. Mr Simpson required him to do so. The Claimant
asked Mr Simpson if he could telephone the Vehicle and Operator Services Agency
(VOSA), an executive agency responsible for enforcement of the RTR. The Claimant
did so. VOSA telephoned the Respondent about the issue. The Tribunal made no
clear findings as to the outcome of this matter.
12.
The Claimant, under protest, remained on site during those 3 days. He
was paid for the days. It was alleged that on one occasion during the 3 days
he used abusive language about the Respondent’s planners, who were responsible
for allotting and managing the drivers’ itinerary.
13.
On 9 April the Claimant was required to attend training on the question
of EU hours and working time. The trainers found that he was very
knowledgeable on these issues. But they described his attitude as one of
sarcasm and arrogance.
14.
That very same day Mr Simpson wrote a letter to the Claimant setting out
various complaints against him (including a complaint from the trainers) and
calling him to a disciplinary hearing. At the hearing on 16 April he was
dismissed.
The Road Transport (Working Time) Regulations 2005
15.
The Tribunal did not grapple with the RTR. In its reasons the Tribunal
said that it was a “grey area” whether the Claimant could be required to stay
in the depot during a “period of availability”. On behalf of the Claimant Mr
Renton submitted that the Tribunal was wrong in this respect; that it should
have found that the Claimant was correct and that the Respondent was incorrect;
and that its misapprehension fundamentally affected its approach to the case.
16.
The law relating to working time for most categories of worker in the
United Kingdom derives ultimately from a series of European Directives, the
current being the EC Working Time Directive 2003 (2003/88) (the “WTD”). The
principal statutory provisions implementing the WTD are the Working Time
Regulations 1998 (“the WTR”), which have been amended from time to time.
17.
However, there are special provisions for the working time of “mobile
workers”. At a European level these are contained in the EC Road Transport
Directive 2002 (2002/15) (“the RTD”). The statutory provisions implementing
the RTD are the RTR.
18.
Broadly speaking the statutory provisions work in the following way.
The WTR sets out a number of rights and obligations concerning working time:
see Part II of the WTR. These include maximum weekly working time, daily and
weekly rest periods, rest breaks and entitlement to annual leave.
19.
In principle a mobile worker is a worker to whom the WTR apply: see reg.
1(1) for the definitions of “worker” and “mobile worker”. But reg. 18(4)
provides that many of the rights and obligations in the WTR do not apply to a
mobile worker to whom the RTD applies. It is not necessary to list all the
rights and obligations; one of them is maximum weekly working time.
20.
The RTR, however, make provision for maximum working time. By reg. 4(2)
it is provided that in any “reference period” a mobile worker’s working time
shall not exceed an average of 48 hours per week. The reference period can be
17 weeks: see reg 4(3)(b). This will be the 17 week period to which Mr Simpson
referred in the statement which we have quoted.
21.
The RTR, following and implementing the RTD, includes a concept which is
not found in the WTR. It is the concept of a “period of availability”. Such a
period does not count towards the average of 48 hours per week: see reg. 5.
22.
Reg. 2 of the RTR contains definitions of “period of availability”,
“working time” and “workstation”. These definitions read as follows:
“Period of availability” means a period during which the mobile
worker is not required to remain at his workstation, but is required to be
available to answer any calls to start or resume driving or to carry out other
work, including periods during which the mobile worker is accompanying a
vehicle being transported by a ferry or by a train as well as periods of
waiting at frontiers and those due to traffic prohibitions.
“Working time” means the time from the beginning to the end of
work during which the mobile workers is at his workstation, at the disposal of
his employer and exercising his functions or activities, being
(a) time devoted to all road
transport activities, including, in particular -
(i) driving;
(ii) loading and
unloading;
(iii) assisting
passengers boarding and disembarking from the vehicle;
(iv) cleaning and
technical maintenance;
(v) all other work intended to
ensure the safety of the vehicle, its cargo and passengers or to fulfil the
legal or regulatory obligations directly linked to the specific transport
operation under way, including monitoring of loading and unloading and dealing
with administrative formalities with police, customs, immigration officers and
others; or
(b) time during which the mobile
worker cannot dispose freely of his time and is required to be at his
workstation, ready to take up normal work, with certain tasks associated with
being on duty, in particular during periods awaiting loading or unloading where
their foreseeable duration is not known in advance, that is to say either
before departure or just before the actual start of the period in question, or
under collective agreements or workforce agreements.
“Workstation” means
(a) the location of the main place of
business of the undertaking for which the person performing mobile transport
activities carries out duties, together with its various subsidiary places of
business, regardless of whether they are located in the same place as its head
office or its main place of business;
(b) the vehicle which the person
performing mobile road transport activities uses when he carries out duties; or
(c) any other place in which
activities connected with transport are carried out.”
23.
It will be recalled that the Respondent required the Claimant to remain
in the depot for the 3 days at the end of March and beginning of April –
because otherwise he would exceed his working time. Mr Simpson described this
as a “period of availability”. If it were working time, it would of course
have the effect of increasing the average working time during the reference
period – precisely what the Respondent had to avoid.
24.
However, it is plain from the definitions which we have quoted that a
period of availability is defined as meaning “a period during which the mobile
worker is not required to remain at his workstation”. The “workstation”
includes the Respondent’s main and subsidiary places of business. So, by
requiring the Claimant to remain at the depot Mr Simpson took the time out of
“period of availability” and made it working hours. As Mr Simpson indicated in
his own statement, this would take the Claimant outside the permissible average
of 48 hours per week.
25.
Put shortly, an employer cannot require a driver to remain on duty at
the depot where he works during a “period of availability”. If he does, the
time will cease to be a “period of availability.” It will become working time;
and it will count towards the calculation of average working time during a
reference period.
26.
On behalf of the Respondent Mr West did not formally concede this point,
but he did not make any reasoned submissions to the contrary.
27.
It was this question which was the subject of what the Tribunal called
“some discussion” between the Claimant and Mr Simpson. The Tribunal described
it as a “grey area”. We do not agree. The very definition of “period of
availability” shows that it cannot include time when the driver is required to
be at the depot where he works. The Claimant was right; Mr Simpson was wrong.
28.
As we leave this part of the judgment, it is convenient to mention one
other point. We were referred to cases on the subject of “on call time” in
connection with the WTD and the WTR: Sindicato de Medicos de Asistencia
Publica (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana
(C303/98) [2001] ICR 1116; Landeshauptstadt Kiel v Jaeger
[2004] ICR 1528; and MacCartney v Oversley House Management [2006] ICR 510. But the definition of “working time” in the WTD and the WTR is
different to that in the RTD and the RTR, which deal with on call time by means
of the concept of a “period of availability”. It is the RTD and the RTR which
are relevant to the Claimant’s employment in this respect.
Dismissal on public interest disclosure grounds
29.
As regards dismissal for making a public interest disclosure, the
Tribunal said the following.
“36. However Mr Simpson did not take exception to Mr Ross
telephoning VOSA. That was the alleged protected disclosure. That incident
had no impact on Mr Simpson’s decision to dismiss.
37. We had some doubt as to whether that disclosure came within
the definition of one that was protected. There was no suggestion that a
criminal offence had been committed or was likely to be committed, nor that a
person was failing to comply with a legal obligation, nor that a miscarriage of
justice had occurred, nor was the health and safety of any individuals being
endangered nor that the environment was likely to be damaged or that any of the
above matters were being deliberately concealed.”
30.
We shall return later to the Tribunal’s conclusion that telephoning VOSA
had no impact on Mr Simpson’s decision to dismiss.
31.
Section 43C(1) reads as follows:
“(1) A qualifying disclosure is made in accordance with this section
if the worker makes the disclosure in good faith -
(a) to his employer, or
(b) where the worker reasonably
believes that the relevant failure relates solely or mainly to –
(i) the conduct of a person other
than his employer, or
(ii) any other matter for which a
person other than his employer has legal responsibility,
to that other person.”
32.
It is also relevant to cite section 43L(3), which provides:
“(3) Any reference in this Part to the disclosure of information
shall have effect, in a case where the person receiving the information is
already aware of it, as a reference to bringing the information to his
attention.”
33.
The Tribunal does not appear to have decided the case by reason of the
doubts expressed in paragraph 37 of its reasons as to whether any disclosure
was protected. We consider, however, that these doubts were misplaced. What
the Claimant was saying tended to show, at the very least, that the Respondent
and its management had failed and were failing to comply with legal obligations
to which they were subject: see section 43B(b) of the Employment Rights Act
1996. The RTR contained such obligations.
34.
Mr Renton submitted that the Tribunal erred in law in failing to
consider whether there was a qualifying disclosure under section 43C(1)(a) when
the Claimant raised with his manager Mr Simpson whether it was lawful for the
Respondent to make him attend work during the period of availability. He
further submitted that disclosure to VOSA would fall within section
43C(1)(b)(ii).
35.
The Tribunal appears to have proceeded on the basis that the only
potential relevant disclosure was to VOSA: see paragraph 36. We do not see why
the Tribunal took that view. If an employee brings to the attention of a
member of his own management facts which indicate that in a particular respect
or respects the employer has failed, is failing or is likely to fail to comply
with any legal obligation to which it is subject, he is making a protected
disclosure: see section 43C(1)(a) and section 43L(3). To that extent we agree
with Mr Renton’s submission.
36.
We do not, however, consider that disclosure to VOSA falls within
section 43C(1)(b)(ii).
37.
In our judgment this provision must be read in its statutory context.
Subsequent provisions within Part IVA deal with disclosure to a Minister of the
Crown (section 45E), to a prescribed person (section 45F) and in other cases
(section 45G). Pursuant to section 45F the Public Interest (Prescribed
Persons) Order 1999 makes provision for a range of public bodies to be
treated as prescribed persons for matters within their area of responsibility.
38.
We consider that the purpose of section 43C(1)(b)(ii) was to protect
disclosure of a relevant failure if it was made to a person having legal
responsibility for the matter. Suppose, for example, that an employee
discovers that the employee of a contractor is breaking the law in a way for
which the contractor bears responsibility. The employee will be protected
under section 43C(1) if he tells his own employer (section 43C(1)(a)), the
employee of the contractor (section 43C(1)(b)(i)) and the contractor (section
43C(1)(b)(ii)). In our judgment section 43C is not concerned with disclosure
to regulatory authorities. If it were otherwise section 45 and the Regulations
made under it would be otiose.
39.
This does not mean that the Claimant’s disclosure to VOSA was
unprotected. For example, depending on the Tribunal’s findings, the disclosure
might be protected under section 43G, on the basis that the Claimant had
previously made a disclosure of substantially the same information to the
Respondent.
Dismissal on health and safety grounds
40.
The Tribunal said:
“39. It was never established by Mr Ross what the health and
safety issue was. On balance we think it was that the respondents took
exception to Mr Ross pinickity inspection of his vehicle. However the
respondents were content to deal with any problem with vehicles however small.
We accepted and were impressed that any problem with a vehicle was dealt with.
It was up to the drivers to make sure that they communicated a defect to
management but this management would put that defect right. In any event Mr
Ross did not have the protection of the provisions in Section 100. He was not
designated by the employer to carry out activities in connection with
preventing or reducing risks to health and safety. He was not a representative
of the workers on matters of health and safety nor had he taken part in
consultation under the 1996 Regulations. We did not hear whether there was a
safety committee or such a representative. If Mr Ross did raise an issue
specifically about his vehicle that matter was immediately dealt with, and
there was never any danger at all to either himself or any other employees.”
41.
Section 100(1)(c) 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 -
….
(c) being an employee at a place where –
(i) where 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.”
42.
Mr Renton submits that the Tribunal erred in law in failing to consider
and address properly section 100(1)(c) of the 1996 Act.
43.
Mr Renton criticises the Tribunal for failing to grapple with the
evidence before it. The matters which the Claimant disclosed to the Respondent
included damage to vehicle brakes, faults with vehicle lights including brake
lights, incorrect MOT discs, insecure loads, insufficient fuel, insufficient
coolant, worn tyres and human excrement in the vehicle. The Tribunal has not
made findings relating to these matters and has not considered whether they
were circumstances connected to his work which he reasonably believed were
harmful or potentially harmful to health and safety, and whether he brought
them to his employer’s attention by reasonable means. Further he criticises
the Tribunal for failing to consider section 100(1)(c)(i) and (ii) as a whole.
Even if there was a safety committee or representative it was not reasonably
practicable for the Claimant to raise these matters by those means for these
were vehicle faults which he had to address when he inspected the vehicle and
before he took it out of the depot.
44.
We accept these criticisms.
45.
There will, we think, always be some employees who make allegations
which relate to safety which are unjustified. But there will also be employers
who dislike being challenged on safety matters, whose response is to allege
that the employee is pernickety, self-serving or worse. In order to decide
whether, on the one hand, the Claimant was making excuses to avoid work or to
extend his working time or whether, on the other hand, he was raising legitimate
points relating to vehicle safety which ought to have been promptly addressed
for safety reasons, it was essential for the Tribunal to make findings as to
the detail. This does not mean that the Tribunal had to give extended
treatment to every instance. But the Tribunal made no finding of any kind
except perhaps that the Claimant was “pinickity” (sic), a finding which is not
sufficient to deal with the nature of the Claimant’s case properly.
46.
We also consider that section 100(1)(c) was potentially engaged. It
would appear that neither side informed the Tribunal whether there was a safety
committee or safety representative. We think it is unfortunate that the
Respondent, which must surely have known the answer to this question, did not
deal with it. The Tribunal seems to have proceeded on the basis that there was
a representative or safety committee even though it had no evidence that there
was. Even if, which we doubt, it was justified in reaching that conclusion,
it was then required to address section 100(1)(c)(ii). It did not do so.
Dismissal and detriment for reason relating to working time
47.
Section 101A of the Employment Rights Act 1996 provides:
“101A Working time cases
(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 the employee -
(a) refused (or proposed to refuse) to comply with a requirement
which the employer imposed (or proposed to impose) in contravention of the
Working Time Regulations 1998,
(b) refused (or proposed to refuse) to forgo a right conferred
on him by those Regulations.
…
(2) A reference in this section to the Working Time Regulations
1998 includes a reference to –
(a) the Merchant Shipping (Working Time: Inland Waterways)
Regulations 2003;
(b) the Fishing Vessels (Working Time: Sea-fishermen)
Regulations 2004;
(c) the Cross-border Railway Services (Working Time) Regulations
2008.”
48.
Section 45A, which we need not set out in full, provides that a worker
has a right not to be subjected to a detriment in similar circumstances.
49.
The Tribunal said:
“40. In relation to working time issues there was no breach of
the working time regulations themselves by the respondents. There was a different
interpretation over what was defined as ‘a period of availability’ but there
was no detriment to the claimant in relation to having to stay in the depot for
three days and not drive. Indeed the respondents were protecting both
themselves and the claimant under the Working Time Regulations by insisting
that the claimant did not drive excessive hours in contravention of the Working
Time Regulations and the claimant suffered no detriment at all as he was paid
for that period.”
50.
It follows from what we have already said that this paragraph is
erroneous. It does not identify the appropriate statutory provisions (the
RTR). Keeping the Claimant in the depot during a period of availability did
not reduce his working hours. Although the Claimant was paid for the period in
question it was in our judgment plainly a detriment to require him to stay at
the depot.
51.
There is, however, a difficulty in the way of reliance upon section 101A
(and section 45A) for the Claimant. Although section 101A(2) provides that a reference
to the WTR includes a reference to certain other regulations concerning working
time, the RTR is not included among those regulations. We note also that
there is no mention of the RTR in section 104 (dismissal for assertion of a
statutory right) or in section 45A (detriment on WTR grounds) where there are
similar references to the WTR and to other working time regulations which are
concerned with specific sectors.
52.
Neither advocate was able to tell us why the RTR should not have been
included with other regulations mentioned in section 101A(2). We note,
however, the following. Firstly, the RTD made specific provision for
enforcement by penal measures which were required to be “effective,
proportional and dissuasive”: see Article 11, a provision with no equivalent in
the WTD. As regards the RTD there was, therefore, an emphasis on enforcement
by penal measures. Secondly, the RTR are not the only sector-specific working
time regulations which are omitted from section 101A, section 104 and section
45A. The same applies to the Merchant Shipping (Hours of Work) Regulations
2002 and the Civil Aviation (Working Time) Regulations 2004. While
noting these matters, we nevertheless remain surprised that the RTR is not
included within the scope of section 101A and not mentioned in section 101A(2).
53.
Mr Renton submitted that section 101A and section 45A should be
interpreted as if a reference to the WTR included a reference to the RTR. He
relied on the principle of EU law whereby courts and tribunals of member states
were required so far as possible to interpret domestic legislation in order to
give effect to the state's obligations under EU law. But proper effect must be
given to the words “so far as possible”: see the discussion in Attridge
Law v Coleman [2010] ICR 242 at paras 11-20. In our judgment no
interpretive technique will allow us to add the RTR to a list of regulations
contained in a statute when Parliament has not chosen to make such provision.
Mr Renton also submitted (at least in substance) that direct effect should be
given to the RTD. He relies on Fuss v Stadt Halle [2010] IRLR 1080 at paras 33, 53. But this, unlike Fuss, is litigation
between private entities; and we do not think it is permissible to give horizontal
direct effect to the RTD.
54.
In our judgment, therefore, section 101A and section 45A cannot be read
as though a reference to the WTR included a reference to the RTR.
Principal reason for dismissal
55.
The Tribunal said:
“42. Ultimately there was no connection or causal link between
the claimant’s dismissal and health and safety issues, working time regulation
issues or disclosure issues.
43. The claimant was dismissed because he was difficult to work
with and had a poor attitude to his work colleagues (including management). There
was no other reason for dismissal.”
56.
Mr Renton submitted that in the light of the Tribunal’s misunderstanding
of the RTR issue and in the light of its failure to grapple with the Claimant’s
case concerning his complaints about vehicle safety these findings of the
Tribunal could not stand.
57.
On behalf of the Respondent Mr West concentrated his submissions on this
point. He submitted that the Tribunal’s finding as to the principal reason for
dismissal was a question of fact; that the Appeal Tribunal could not and should
not disturb its finding; and that on the evidence there was ample material to
justify the finding.
58.
We prefer the submissions of Mr Renton. We think that the Tribunal
fundamentally misunderstood the Claimant’s case concerning the RTR, and that
its finding that the Claimant “was difficult to work with and had a poor
attitude to his work colleagues including management” cannot safely stand. It
is one thing to say that an employee is “difficult to work with” where there is
a genuinely grey area about a regulatory matter; another thing altogether to
make the same finding if the employee is plainly right on a subject which the
employer should know and understand. It is one thing to find that an employee
“has a poor attitude to work colleagues” if his complaints about vehicle safety
are unjustified; another if he was broadly justified in asking for matters to
be corrected before he left the depot. The Tribunal did not grapple with the
RTR at all and did not make proper findings about the issues relating to
vehicle safety.
Result
59.
We have, we think, said sufficient to show that the appeal must be
allowed and the matter remitted to be re-heard entirely afresh by a differently
constituted Tribunal.
60.
We think it is highly desirable that a case management discussion should
be held first to list carefully the issues which the full hearing will consider
and to ensure so far as practicable that all sides are ready for the full
hearing.
