Mr M Ali and Mr F Hyseni v London Transit Ltd: 2218429/2024 and 2218533/2024
JUDGMENT
[1]The First Claimant’s application to adjourn the Final Hearing and for an Order adding Transport UK London Bus Limited (“Abellio”) as a Second Respondent, is refused.[2]The claims of both Claimants against the Respondent are dismissed.REASONS
[1]At the outset of the Hearing which was conducted remotely by CVP, I asked Mr Neckles several times to speak more clearly and slowly as he was inaudible. He had joined by mobile phone as his main internet connection was inoperative (there was a widespread outage on 19/7/24). He however was not talking directly into his mobile phone and I could not hear him clearly. After I asked him several times to try to make himself audible, he became visibly annoyed.[2]I then considered his application to adjourn the Hearing today and add Abellio which application had been made by email sent on 19/7/24, supported by an unsigned witness statement of the First Claimant. Both the application and the witness statement included the following “The Claimant between the period of April 2009 and 30th September 2023 was an employee of Abellio London Ltd herein referred to as the Transferor” which was plainly wrong, as should have been obvious to anyone who had even the most superficial knowledge of the undisputed facts of the case.[3]Having discussed this error, which Mr Neckles corrected, and having then heard his submissions about his application to adjourn and add Abellio as an additional respondent, I refused the application for the following reasons: I accepted Mr Neckles’ submission that an additional respondent can be added under Rule 34 to an extant claim, even if the proposed claim against the additional respondent would be time-barred if issued afresh as a new claim. However, I decided not to add Abellio because, regardless of any time-issues, the application and witness statement failed to set out any coherent cause of action against Abellio, and on the facts there is no valid claim against that company which could be set out in relation to the alleged arrear wages which the Claimants are seeking in this matter. I decided not to adjourn because there was no good reason to delay the Hearing which had been listed and prepared to start at 2pm on 19/7/24.[4]At that point Mr Neckles made an application that I should recuse myself “as he knew from past cases1 and from today I that I was a “covert racist against him personally” and as such his client would not get a fair trial before (me)”.[5]Mr Nuttman then interjected to volunteer “as an officer of the court” that he did not agree that anything I had said or done warranted recusal. I dismissed the recusal application as an unwarranted and scurrilous attempt to obtain by other means an adjournment which I had just refused.[6]This trouble caused by Mr Neckles has not affected the outcome of the claims, which I have dismissed because of their lack of merit only.[7]These are claims for arrear wages claimed under section 13 Employment Rights Act 1996 alternatively in contract under Regulation 3 of the ET Extension of Jurisdiction (England and Wales) 1994.[8]I heard evidence on oath from the Claimants and then from Mr A Southgate, the Head of Operations at the Respondent’s Westbourne Park garage. I was referred to a bundle of 1 According to my records I have sat on at least two previous Hearings in which Mr J Neckles appeared before me or was referred to in my judgment: In one of these (2204734 2029V) in April 2021 at the outset Mr Neckles made similar abusive attacks upon my integrity, which was prompted by his misunderstanding a ruling I had just made in his client’s favour. In the same case he gave evidence on oath which the Tribunal panel in its subsequent written reasons did not accept as true, preferring the evidence of another witness who had given evidence which contradicted his account. In another case (2204397 21 and 2201310 22) where his brother F Neckles was representing, in August 2021, I struck out his client’s case because of non-compliance with directions which made a fair trial impossible, holding that “I am afraid that having listened carefully and at length to Mr F Neckles’s varied and contradictory explanations, I am far from satisfied that a full, frank or acceptable account has been provided by him for the delays and failures on the part of him, his brother and his trade union in conducting the Claimant’s case/s. The real explanation is incompetence, negligence and cavalier disregard for Tribunal directions by Messrs Neckles throughout……..I do not find that it was not reasonably practicable for the unfair dismissal and like claims to be presented in time. The Claimant had the assistance of her union and Mr J Neckles, a trade unionist experienced in Employment Tribunal matters. The Claimant’s mental ill-health did not prevent her communication with Mr J Neckles - I find that she reported the termination of her employment to him when it occurred and sent him the correspondence, trusting him to act for her in relation to her ET claims as was required for the protection of her interests. Mr J Neckles let her down. The reason for the non-presentation in time is Mr J Neckles not staying in touch with the Claimant and fulfilling the responsibilities that she had delegated to him. Had he stayed in touch with her and given attention to her case he could and should on her behalf have issued any unfair dismissal and related claims on her behalf before 7/1/22”. 73 pages relating to Mr Hyseni (including his employment contract).[9]The Respondent had prepared a supplementary bundle of 35 pages relating to Mr Ali (including his employment contract) and had sent this by email to Mr Neckles on 18/7/24. Mr Neckles said he had not received it. Mr Neckles himself had not prepared any bundle of documents and denied having a copy of Mr Ali’s employment contract. Rather than allow another unnecessary obstacle to the Hearing proceeding, I decided to proceed on the basis of excluding from consideration the documents in the supplementary bundle which the Respondent wished to refer to.[10]The consequence of this was that I did not have sight of Mr Ali’s employment contract. This was insignificant because I did have sight of Mr Hyseni’s employment contract and I accepted the Respondent’s evidence and submissions that the two had both been employed by the Respondent on the same material terms.[11]Clause 31 of the standard contractual terms, which I refer to below, was discussed at some length during the Hearing. Furthermore, in the closing moments of the Hearing Mr Ali volunteered that, contrary to what he had told me earlier, he did in fact have a copy of his contract with the Respondent. That being the case, both he and Mr Neckles (acting reasonably as a representative of a claimant bringing a contractual claim) would have had an opportunity to read it and present it in evidence themselves at the Hearing if they had wished to do so.[12]I was referred to a previous ET decision in the case Quartermain v London United Busways Ltd 2304151 2022 which involved similar facts. I am not bound by that decision either on the law or the facts but I agree with its reasoning and conclusion.Findings of fact
[13]Both Claimants were employed as bus drivers based at the Respondent’s Westbourne Park garage by the Respondent during 2023 at a time when the Respondent, represented by Mr Southgate, started its annual negotiations about drivers’ pay rises with its recognised Trade Union Unite.[14]The negotiations were still ongoing and had not resulted in any collective agreement when the undertaking in which the Claimants were employed was TUPE transferred to Abellio on 30/9/2023. The Claimants were paid by the Respondent all sums due up to the date of transfer.[15]The Claimant’s employment contracts with the Respondent contained clause 31 reading as follows: “COLLECTIVE AGREEMENTS 31 Terms and conditions of collective agreements may be amended by agreement with the recognised Trades Unions. Any collective agreements with trade unions to which the Company is or may become a party are a matter between the Company and the union and do not confer or create rights between you and the Company. You have the right to belong to a Trades Union and take part in its activities”.[16]After the TUPE transfer of 30/9/23, the negotiations continued between the Respondent and Unite in relation to the pay of the Respondent’s remaining drivers based at the Westbourne Park garage. The Respondent and Unite reached a collective agreement about this on 2/2/24.[17]The agreement had two elements; the first element was an increase of 6.65% in the pay for employees for the period 1/4/23 to 2/2/24 - ie a backpay award. The second element was to increase pay by 7.1% for the period commencing 3/2/24.[18]The collective agreement itself was not produced in evidence to me. Mr Southgate who is well-experienced in negotiating the annual pay awards, told me (and I accept) that he intended to agree a pay award in relation to existing Respondent’s employees only and had no intention to agree with Unite that any pay award would extend to ex-employees.[19]Shortly after the collective agreement was entered into, the Respondent issued an implementation notice to the drivers then still employed by it at the Westbourne Park garage. This was produced in evidence. The implementation notice was entitled “Implementation Notice no. 2023/2024 -01 - revised pay and conditions for Westbourne Park Drivers.”[20]The Claimants who were no longer employees of the Respondent, were not issued an implementation notice. 21.The Claimants found out about the collective agreement and claimed in these proceedings that as against the Respondent they are entitled to the benefit of the backpay award for the period 1/4/23 to 30/9/23, because they worked as employees of the Respondent during that period and the backpay award relates to such employees. Conclusion.[22]For purposes of a claim under section 13 ERA 1996, the term “wages” includes “any sums payable to the worker in connection with his employment, including- (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise.”[23]The Claimants’ contractual relationships with the Respondent terminated on 30/9/23.[24]There was nothing in the contracts which gave the Claimants the right as against the Respondent to the benefit of any pay awards agreed by the Respondent after their employment by the Respondent had ceased.[25]Mr Neckles referred to various reported cases such as National Coal Board Galley 1958 1 WLR 16, City of Edinburgh v Brown 1999 IRLR 208 and Robertson v British Gas Corp 1983 ICR 351, which deal with the ways and means by which collective agreements between an employer and a trade union can become incorporated into individual employment contracts. None of those cases are authority for the proposition that a collective agreement can be incorporated into an employment contract to which the employer is no longer a party when the collective agreement is entered into.[26]I find on the evidence of Mr Southgate that the collective agreement dated 2/2/24 was not intended to extend and did not extend to ex-employees of the Respondent.[27]Had the contracts continued as between the Claimants and the Respondent after 30/9/23, then, as a result of clause 31, the collective agreement would not have become part of those contracts, simply by virtue of having been entered into.[28]The terms of the 2/2/2024 collective agreement became part of the contracts of the remaining Respondent drivers in February 24 by means of the implementation notice which was issued to those drivers but not to the Claimants.[29]The implementation notice was not issued to the Claimants because the Respondent did not intend to extend to them the benefit of the backpay award.[30]As the Claimants were no longer employees of the Respondent in February 24, there were no contracts into which the benefit of the collective agreement could be implemented.[31]Hence the section 13 claim cannot be brought in relation to any wages payable as a “contractual right”.[32]It is agreed that when the pay negotiations started and up to 30/9/23 the negotiations were for a group of employees which included the Claimants. However, I do not accept Mr Neckles’ submission that it follows that when the negotiations ended the Claimants should receive the benefit. By then the Claimants had fallen out of the benefitted group.[33]The Claimants made it clear that they feel that this was unfair. I understand those sentiments. However, they have the onus of proof and have not shown that they are entitled to the backpay award under a contract or otherwise.[34]The claim under Regulation 3 of the ET Extension of Jurisdiction (England and Wales) 1994 cannot succeed for the above reasons but also because a claim under that regulation can be brought only if it arises or is outstanding on the termination of the employment. The Claimant’s employment with the Respondent ended on 30/9/23 on which date the collective agreement had not been entered into.[35]Hence their claims fail and must be dismissed.[36]The Claimants had and have no valid claim against Abellio either because their employment rights and obligations which were transferred to Abellio were those that existed on 30/9/23 and they could not be changed or affected by any collective agreement entered into by the Respondent on 2/2/24. This is why I refused to add Abellio as a further respondent.