Green v Roberts [1992] UKEAT 508_91_2005

EAT
Green v Roberts
[1992] UKEAT 508_91_2005 · 1992-05-20
MR JUSTICE WOOD (President) : By an Originating Application dated 13 March 1991 the Applicant, Mrs C Roberts alleged that she had been unfairly selected for redundancy. She cited her employer Mr Michael Green, as the Respondent, and in the Originating Application stated that her employment had begun in October 1988 and ended on 28 February 1991. The Notice of Appearance referred to a contract of employment with notice of termination of one week, and added:
"She refused to sign and return it due to the "non smoking" office rule condition."
and then it went on to say that she was paid on an hourly basis but apart from that the rest refers to the redundancy.An Industrial Tribunal sitting at Liverpool on 10 July 1991 under the chairmanship of Mr Heppell had before it a preliminary issue; namely whether Mrs Roberts had the requisite 2 year qualification period for her to bring proceedings under the 1978 Act. Before the Tribunal the Applicant was represented by Mr J Strang from the Wallasey Citizens Advice Bureau and the Respondent by a member of their accountancy staff, a Miss R E Jones. The Applicant and Miss Jones both gave evidence.The Tribunal set out the issue quite clearly in a very short decision. In paragraph 3 they say this:
"The applicant was employed by the respondent on 10 October 1988 and worked part-time until 1 January 1990 from when she worked full-time until her dismissal on 28 February 1991. The respondent submitted that the applicant's hours when she was working part-time were less than 16 hours per week and that she had not therefore been employed within the meaning of the Employment Protection (Consolidation) Act 1978 for a period of 2 years."
and then lower in that same paragraph, when dealing with the question of the contract the Tribunal say this:
"There was no written contract of employment, a copy of written terms of employment was produced which stated that her normal hours of work were variable but it was accepted that this had never been signed by the applicant and indeed she said that she had never been handed a copy"
and finally the paragraph giving the decision reads:
"In the circumstances the Tribunal considered that the applicant had worked from the beginning of 1989 under a contract of employment which normally involved employment for 16 hours or more weekly and therefore the weeks from that date counted in computing the period of her employment by virtue of Clause 4 of Schedule 13 to the Employment Protection (Consolidation) Act 1978. She was employed full-time from the beginning of January 1990 and was not dismissed until the end of February 1991. It was therefore clear that she had been employed continuously for more than 2 years and the Tribunal therefore had jurisdiction to consider her application."
It seems to us from a reading of that part of the decision and from looking at the document which it is said in the Notice of Appearance the applicant refused to sign, and which she said she had never been handed a copy that the Tribunal were finding that the contract was one for variable hours. It is right that they refer to part-time or full-time but that if one looks at the documentation merely refers to the number of hours which the Applicant, Mrs Roberts, was working. The document provides for 2 week's full pay plus statutory holidays and makes other provisions. As was indicated in the Notice of Appearance it also deals with no smoking in the offices. The contract quite clearly, so far as the document indicates, and one looks at that partially for the evidence and for the statement in the reasons, is one where Mrs Roberts was required to work for such reasonable hours as were demanded of her by her employer. Indeed that is precisely what she did as the facts disclosed.The relevant parts of the 1978 Act start with Section 64 dealing with the qualifying period. Section 64(1) reads:
"Subject to subsection (3), section 54 does not apply to the dismissal of an employee from any employment if the employee - (a)was not continuously employed for a period of not less than [two years] ending with the effective date of termination....."
There is the qualifying period of "continuously employed for a period of not less than [two years] ending with the effective date of termination". In this case it was 28 February 1991.Then when one sees how to calculate the continuous period of employment it is necessary to look next at Section 151. It is the first two subsections which are relevant. Subsections 1 and 2 read:
"(1) References in any provision of this Act to a period of continuous employment are, except where provision is expressly made to the contrary, to a period computed in accordance with the provisions of this section and Schedule 13; and in any such provision which refers to a period of continuous employment expressed in months or years a month means a calendar month and a year means a year of twelve calendar months.
(2) In computing an employee's period of continuous employment any question arising as to -(a) ... (b)whether periods (consecutive or otherwise) are to be treated as forming a single period of continuous employment,shall be determined in accordance with Schedule 13 (that is to say, week by week), but the length of an employee's period of employment shall be computed in months and years of twelve months in accordance with the following rules."and they there refer to other matters.Turning to Schedule 13, it is headed "Computation of Period of Employment" and paragraph 1 has two relevant sub-paragraphs. Under sub-paragraph 1 it reads:
"Except so far as otherwise provided by the following provisions of this Schedule, a week which does not count under paragraphs 3 to 12 breaks the continuity of the period of employment."
and just for completeness the definition of a week is to be found in paragraph 24(1) and it reads:

""week" means a week ending with Saturday."

Sub-paragraph (3) of paragraph 1, reads:
"A person's employment during any period shall, unless the contrary is shown, be presumed to have been continuous."
and paragraph 3 states:
"Any week in which the employee is employed for sixteen hours or more shall count in computing a period of employment."
That is under normal working weeks and then there is a heading "Employment governed by contract" and the important paragraph 4 which we must consider in detail in the present case and that reads:
"Any week during the whole or part of which the employee's relations with the employer are governed by a contract of employment which normally involves employment for sixteen hours or more weekly shall count in computing a period of employment."
The only other paragraph to which we need refer is paragraph 9, which is to be read under the heading "Periods in which there is no contract of employment" and that deals with certain situations where time does not cease to run. It is sickness, temporary cessation of work, circumstances whereby arrangement or custom the employee is regarded as continuing and then the question of pregnancy or confinement.Mr Benson's primary submission is that upon the finding that this contract did not state specific hours of employment and merely refers to variable hours, or as we would have rephrased it perhaps that the employee, Mrs Roberts, was under a duty to work for those hours reasonably required by her employer, he submits that if a contract so provides then it cannot fall within paragraph 4 of Schedule 13 because it is impossible for a Court to spell out the contractual relationship sufficiently to satisfy that paragraph and he says:"how can you say that the contract of employment normally involves employment for 16 hours or more weekly if you cannot spell that out from the contractual position".It seems to us that that submission would undermine the purpose of the continuity of employment, the qualifying period, and the intention of the Act to give the statutory protection under the Act to those who have been working steadily over the requisite qualifying period for weeks in which they have worked in excess of 16 hours. It would provide a loophole for unscrupulous employers; it would provide uncertainty and in industrial relations, in periods of recession when work was scarce - an employee might take up work under those terms without realising the situation. Then if they were highly satisfactory and worked for that same employer for many years would discover at the end of it that they had no statutory rights whatsoever. That, in our submission, cannot be right.What then is the approach in a situation where, under the contract, the employee must work such hours as are reasonably required? It seems to us that the only way, the logical, sensible and indeed as the Industrial Members feel, the "sensible" way in industrial terms, is to see what in fact took place and if one looks at the facts of this case as found by the Tribunal, they say this and I am merely continuing to read in that short paragraph 3. They say:
"It appeared from the evidence of the applicant that when she was first employed she was to work 3 hours per day for 5 days per week namely from 4.00 pm until 7.00 pm in the evening. However very shortly after her appointment she was asked to work for an extra half hour per day when it was her duty to open up the office at 9.00 am." [Pausing there, it seems the requirement of her employer initially was 3 hours a day but very soon became 3 1 / 2 hours a day which exceeds the 16 hours a week, and then the Tribunal goes on] Lists of the hours that she worked were produced by the respondent and it appeared from these that the average day was of 3 1 / 2 hours giving a working week of 17 1 / 2 hours. The actual hours worked varied widely since she was required to fill in for people who were on holiday or off sick. During some weeks she did not work at all this being because of the illness of her mother and of her daughter. Nevertheless it appeared to the Tribunal that her normal working week involved employment for more than 16 hours."
It seems clear to us from the documentation which has been produced to us and which was before the Tribunal, that the Tribunal were in a position to examine some 27 pages of records of Mrs Roberts' work. The detailed hours per day are recorded, the blank weeks are recorded, the holiday periods are for the most part recorded and therefore there was a record before them which the Tribunal were able to examine. They heard oral evidence from both sides and conscious as they were of the provisions of Schedule 13, it is reasonable to suppose have examined the cause for any absence or failure to work. We accept therefore that the approach of the Tribunal was a perfectly proper approach, namely to look and see what happened if, in fact, the term of the contract was for variable hours, those hours reasonably required by the employer.A number of authorities have been cited to us and we turn to them to see whether any authority requires us and through us the Tribunal, to take a different approach. The earliest case cited to us was the case of ITT COMPONENTS GROUP (EUROPE) v KOLAH [1977] ICR 740. The headnote reads as follows:
"From December 1970, the employee was employed as a clerk under a contract specifying that she would work a total of 20 hours a week, with extra payment for overtime work. She was promoted to the position of supervisor in January 1975, continuing to work a weekly total of 20 hours, with an average of four hours' overtime a week. When the employers dismissed her in November 1975, she applied to the industrial tribunal for compensation for unfair dismissal. The tribunal, in calculating the number of hours worked weekly, included the hours of overtime and decided, as a preliminary point, that she was employed under a contract normally involving at least 23 hours' work each week and, in those circumstances, was not excluded from her rights under paragraph 4 of Schedule 1 to the Trade Union and Labour Relations Act 1974.."
The employers appealed and this Court allowed the Appeal. It decided that the number of hours normally worked was to be ascertained from the contract of employment; that whether those hours were expressly stated in the contract or had to be determined by inferring the terms from what happened in practice, the hours normally worked did not include voluntary overtime; and that, since the Industrial Tribunal had not applied the right test and the employee's contractual obligations might have been varied on her being promoted to the position of supervisor, the case would be remitted to the industrial tribunal. So the possible variation there of course, was on promotion, so there were new terms and conditions of employment which would come into being.The relevant passage giving the view of this Tribunal presided over by the Learned President at the time the late Mr Justice Phillips, is at page 746 between B and C and there the two submissions are set out. The Learned Judge says this:
"It is helpful to summarise the meaning put on paragraph 9 (1)(f) (and thus paragraph 4 of Schedule 1 of the Contracts of Employment Act 1972) by Mr Howard and Mr Gray, respectively. According to Mr Howard the effect is to require one to look first at the contract and see what it provides in respect of the number of hours to be worked. This may be expressly provided for in the contract or, as sometimes happens, it can only be determined by inferring the terms from what happens in practice. It will then be possible to see how many hours' employment the contract normally involves, i.e. exclusive of voluntary overtime. It is these hours to which paragraph 4 refers. Mr Gray, on the other hand, says that one looks to see what happens in practice and counts the hours, including all overtime, normally worked over a period (even if not in the particular week under consideration) and these are the hours to which paragraph 4 refers."
The Court go on to say that they prefer the submission advanced by Mr Howard. They say:
"It seems to us that this construction gives proper weight to the words in paragraph 4, "governed by a contract of employment which ...," whereas Mr Gray's construction gives no weight to those words."
and then they look at some other parts of the act. That authority seems to indicate that the approach of this Industrial Tribunal is to look at the contract and only to look elsewhere after they have decided whether the contract gives them the answer. There was no need to imply any terms in the present case. The terms they were able to find from the oral evidence and from that written document.The second authority is the case of DEAN v EASTBOURNE FISHERMEN'S AND BOATMEN'S PROTECTION SOCIETY AND CLUB LTD [1977] ICR 556. That was a case where there was no written contract of employment and the terms of the contract were to be implied from the actions of the parties. The Tribunal in their finding (and I do not think we need the facts) said:
"that in order to assess whether the employee's contract normally involved employment for 21 hours or more weekly within paragraph 4 of Schedule 1 to the Contracts of Employment Act 1972, it was necessary to consider how many hours were in fact worked altogether in the 104 weeks prior to his dismissal, and that since he had worked for more than 21 hours in 86 of the 104 weeks, he had been continuously employed for the requisite period and qualified for a redundancy payment."
So that the facts of DEAN are very similar to the facts of the present case. That was a division of this Court presided over by Mr Justice Bristow.At page 559 in the Reserved Judgment, the Learned

Judge says this:

"In our judgment the decision in this case turns on the conditions of the contractual relations between the employee and the employers, which were never expressed and so have to be implied from the way in which the parties in fact acted. About this there is happily no dispute. Paramount to the solution of the problem is the fact that he worked the hours that Mr Whatman asked him to, and was paid for all the hours he worked. It was accordingly, in our judgment, a term of his contract of employment that he should work the hours that Mr Whatman asked him to. The session hours affect the rate at which he was to be paid, because, if Mr Whatman told him to work beyond session hours, he got less for the extra; but work he did, because Mr Whatman asked him to, and was paid for it.
That being the contract of employment, how are you to discover whether it normally involved employment for 21 hours or more weekly? In our judgment, what you have to do is see what in fact happened during the period before the employee's job came to an end. We have before us an agreed schedule which the tribunal did not have. This shows that from the week ending April 6 1974, to the week ending April 2, 1976, the employee worked 21 hours or more in 86 weeks, and less than 21 hours in 18, five of which don't count for the purposes of computation because he was off sick."The relevant period therefore was 104 weeks and this Industrial Tribunal took the same approach as did the Employment Appeal Tribunal in DEAN and it would seem therefore that the approach of this present Industrial Tribunal is supported by DEAN .The next case was LARKIN v CAMBOS ENTERPRISES (STRETFORD) LTD [1978] ICR 1247, a decision of this Tribunal and presided over by Mr Justice Slynn. Again perhaps I can take it fairly shortly from the second paragraph of the decision in the headnote:
"That, where a contract of employment did not provide for a specific number of hour's work, an industrial tribunal was entitled to look at the number of hours an employee actually worked to ascertain whether or not the contract was one which normally involved employment for 21 hours or more a week; that, on that basis, the contract was normally one involving over 21 hours a week and, accordingly, the requirement of 26 weeks' continuous employment under paragraph 10(a) of Schedule 1 to the Act of 1974 was satisfied."
That 26 weeks is for our present purposes now 104 weeks. This Tribunal dealt with that second point at pages 1254 at C over to page 1255 at D and they follow the decision and apply the decision in DEAN and that merely reinforces the importance of the approach in DEAN's case.We were also referred to the case of SECRETARY OF STATE FOR EMPLOYMENT v DEARY [1984] ICR 413. That case is somewhat different from the present facts. The headnote reads:
"Held, dismissing the appeal, that "normally" in paragraph 4 of Schedule 13 to the Act required the industrial tribunal to consider not merely the terms of a contract as varied but to consider the contract as originally drawn and the variations made to its terms during the period the contract was in being; that the industrial tribunal, having properly ascertained the normal working of the applicants' contracts, had rightly considered them to be contracts that normally involved working for periods of eight hours or more a week within the meaning of paragraph 4."
In the present case of course there is no problem because this contract has existed throughout the relevant period of employment.Lastly we need only refer to the case of OPIE v JOHN GUBBINS INSURANCE BROKERS LTD [1978] IRLR 540 in which it was held that you could not just average out the hours and then take those across a relevant period and reach a decision as to the normal hours of employment.It seems to us reading paragraph 4 that the approach indicated from the authorities is that one must first look at the contract. The relevant contract over the relevant period which in most cases it seems to us is likely to be the qualifying period here of 2 years prior to the estimated date of determination; if that gives you a contractual situation then that is the relevant provision. If it is varied, then the contract or contracts, must be construed provided the variation is sufficiently fundamental so that in reality you have a change in the terms and conditions of service. If, as in the present case one has a contract which persists throughout, simply to carry out such work as is required as in the case of DEAN then one looks to see how in fact it has operated.In the present case, turning to the facts and to the calculations which have been helpfully placed before us, the situation as we understand it is this. That over the 104 weeks prior to 1 March 1991, there are 14 weeks in which the Applicant worked less than 16 hours. There were other weeks shown blank but they are capable of explanation, for instance only one is marked a holiday whereas there is another week's holiday to be found somewhere. Another week is for Christmas and indeed as the Tribunal found during some weeks Mrs Roberts did not work at all because of the illness of her mother and of her daughter and no doubt any reasonable employer would have given her time off for those particular purposes. It seems to us therefore that the Tribunal were fully entitled to say that 14 weeks were open to doubt out of 104 and it may be, we know not, but taking it at its highest for the Respondents, it may be that there were explanations, but even if there were not, then the Tribunal were entitled to say that this was a contract under which, as it was performed, it normally involved working for 16 hours or more weekly and therefore it counts for the relevant period.A second submission was made by Mr Benson and that is that under the provisions of Section 151 Sub-section (2) it is important for a Tribunal to examine each week as a separate entity and to see whether paragraph 4 applies to that week. It seems to us that that might be of some avail to his client if in fact there had been different contracts applicable for different weeks, whether by variation in the terms and conditions of a substantial nature so that one say that there is a different contract or by a wholly new contract for instance on promotion. But here there is only one contract in being throughout and therefore there is no fundamental change; there is no situation which requires one to examine the contractual position week in week out during the relevant period. In those circumstances therefore it seems to us that to examine each week as against the terms of paragraph 4 on the contractual aspect is of no avail to the Respondents.For the reasons which we have given we dismiss this Appeal but would not like to leave it without thanking both advocates for their assistance in what has turned out to be rather less simple a case than had at first appeared from the documentation.