Medlicott v Cillmec Ltd [1994] UKEAT 899_92_1606

EAT
Medlicott v Cillmec Ltd
[1994] UKEAT 899_92_1606 · 1994-06-16

JUDGE HULL QC:

In this case Mr Medlicott was employed by the Respondents. He worked in the building trade and his employment began in April 1988 and ceased on the 18 September 1991. He made various claims and when they had not been met to his satisfaction, complained to the Industrial Tribunal. He made a claim in respect of holiday pay, which he says has not been paid to him, for pay in lieu of notice, and he also made a claim for guaranteed pay, either under Section 12 of the Employment Protection (Consolidation) Act 1978, or as he said, or was minded to say, in respect of the National Working Rules, which are given official recognition in the Guarantee Payment Exemption No.3 Order of 1977. I will deal with that in a moment.The Tribunal found that various payments had been made. First of all they said, quite rightly in our view, that they had no jurisdiction in respect of a claim to pay in lieu of notice. That is established by very high authority, in the House of Lords. Although it is now true that jurisdiction is being conferred on Industrial Tribunals to entertain claims for damages in connection with employment, that of course does not apply retrospectively and this complaint was being heard by the Industrial Tribunal sitting at Liverpool on the 6 August 1992. Mr Brown was the Chairman and we are told that he is a Chairman of very great experience, having sat for no less than 18 years, and no doubt his Industrial Members are also chosen for their experience on both sides of industry.That was the way in which they dealt with the claim for pay in lieu of notice. With regard to the other claims they set out what had been paid to Mr Medlicott, starting in paragraph 4. They set out various payments for guaranteed pay and holiday pay and redundancy pay and further additional payments that had been made.Mr Medlicott tells us, and no doubt rightly, that some of those were simply additional payments in respect of tax which had been deducted and no doubt was authorised to be repaid because he was then out of work. It does appear that the guarantee payments, as they are called, were at the rate of £13.65 per day for 5 days whilst he was laid off and that of course is the statutory rate.I must refer in a moment to the provisions under which guarantee pay is paid, but for the moment I will continue with the Industrial Tribunal's decision. They say:
"The applicant's case has been that under the National Working Rule Agreement applicable to the building industry he is entitled to a greater amount of guaranteed pay, holiday pay and notice pay than he has received.

We find the following facts:-

(a)The applicant who commenced employment with the respondents in April 1988 to and which ceased on 18 September 1991, which date we find to be the effective date of termination of his employment was not a member of a Trade Union during the period of his employment with the respondents. (b)The respondents were not party to the said National Working Rule Agreement and have no agreements with any Trade Union as to pay and conditions or holiday pay."Then they say there is an Exemption Order in force in respect of the National Working Rule Agreement, we will refer to that in a moment. Then they say:
"(d)Under the National Working Rule Agreement before an applicant can come to a Tribunal he should proceed with his dispute through the Regional and National Conciliation Panels."
We will come to that too.
"(e)The applicant has received the amounts of money from the respondent as set out in paragraph 4 above.
With regard to the applicant's claim for money in lieu of notice the Tribunal has no jurisdiction to deal with that claim under the Wages Act 1986.With regard to the claim for guaranteed pay the Tribunal has no jurisdiction because of the Exemption Order."That is a confusing statement, and we will do our best to elucidate that in a minute or two.Now the appeal to us, as we understand it, is with regard to the question of guaranteed pay. So far as the other matters are concerned, with regard to pay in lieu of notice there is no doubt that the Tribunal are completely right in law and absolutely bound as we are, by the highest authority, to refuse that. With regard to holiday pay they found that he had been paid all that he was entitled to and that is a pure question of fact and there can be no appeal to us concerning that.We come now to the question of guarantee pay. That arises under Section 12 and the succeeding sections of the Employment Protection (Consolidation) Act 1978. Under Section 12 there is a right:"Where an employee throughout a day during any part of which he would normally be required to work in accordance with his contract of employment is not provided with work by his employer by reason of-" [then there are various reasons]
"he shall, subject to the following provisions of this Act, be entitled to be paid by his employer a payment, referred to in this Act as a guarantee payment, in respect of that day, .... "
There are all sorts of provisions after that about the conditions and the basis on which it is to paid. Putting it very shortly, 5 days is the normal maximum, and the amount was very limited at the material time, it was £13.65 per day. That is the statutory scheme. Of course, where there are organisations of employers and workers there are better provisions with regard to guarantee payments and Parliament noticed that when it passed these enactments.Now I have referred to Section 18 which deals with this. Section 18 says:
"(1)If at any time there is in force a collective agreement, or a wages order, whereby employees to whom the agreement or order relates have a right to guaranteed remuneration and on the application of all the parties to the agreement or, as the case may be, of the council or Board making the order, the appropriate Minister, having regard to the provisions of the agreement or order, is satisfied that section 12 should not apply to those employees, he may make an order under this section excluding those employees from the operation of that section."
We are not concerned with wages orders here, which of course are made by the Wages Council, but we are concerned with a collective agreement; the collective agreement in question being the National Working Rules of the Building Industry. Now after defining who is meant by "the appropriate Minister" section 18 continues:
"(4)The Secretary of State shall not make an order under this section in respect of an agreement unless- (a)the agreement provides for procedures to be followed (whether by arbitration or otherwise) in cases where an employee claims that his employer has failed to pay the whole or any part of any guaranteed remuneration to which the employee is entitled under the agreement, and that those procedures include a right to arbitration or adjudication by an independent referee or body in cases where (by reason of an equality of votes or otherwise) a decision cannot otherwise be reached; or (b)the agreement indicates that an employee to whom the agreement relates may present a complaint to an industrial tribunal that his employer has failed to pay the whole or any part of any guaranteed remuneration to which the employee is entitled under the agreement;
and where an order under this section is in force in respect of such an agreement as is described in paragraph (b) an industrial tribunal shall have jurisdiction over such a complaint as if it were a complaint falling within section 17.which gives the general jurisdiction to make complaints under Section 12.The fact was therefore, as the Tribunal found, and we certainly cannot go behind this finding, that Mr Medlicott was not a member of the Union; that his employer was not a subscriber to this agreement; and that in those circumstances this collective agreement on the face of it would not apply. But of course there is no reason hypothetically why an employer should not say to an employee, or to the employee's representative, "although we are not parties to this National Working Rule Agreement, nonetheless, we will observe between us the following terms of it", or perhaps "all the terms of it". So they might, thus, simply by private contract make an agreement between themselves in terms equivalent to that, and in effect, adopts it. So that, from a legal point of view, and we are concerned here with legal points of view, is a possibility.Unfortunately, this Industrial Tribunal do not seem to have addressed their minds to the question whether despite the fact that neither Applicant and his employers were members of bodies who did enter into this agreement, nonetheless, they might have some private agreement between them as the Applicant seemed to be suggesting. They dealt with that by saying "well in effect, even if the agreement did apply, then the condition precedent, as a lawyer would call it, a condition of the agreement, which is necessary before he can come to us, has not been observed." That is the condition referred to by the National Working Rule Agreement.It does seem to us, and obviously to the Industrial Tribunal also, that no reference could be made to the Industrial Tribunal until the decision of the National Conciliation Panel had been refused. When one looks at the evidence, to which Mr Gorton very kindly invited our attention, one sees how the Tribunal was reinforced in and came to that decision. Mr Medlicott himself said as follows in the course of his evidence:
"I have not gone to the National Conciliation Panel. I agree I should under the National Working Agreement. They say it does not apply to me. I have no claim at all against the Respondents. I have had my entitlement."
So there he is saying "well I have not gone to get the National Conciliation Panel's agreement, because my employers say this does not apply to me." There is also the evidence of the employer, at page 32. He says:
"We are not a party to the Working Rule Agreement.
We have no Agreement with trade unions.There is no written contract of employment.

There is no agreement as to guaranteed pay."

So there they had the assurance of the employers that Mr Medlicott was not entitled under his agreement to any guaranteed pay.Now what appears to us to be the natural reading of this decision by the Industrial Tribunal was this. They were saying "we are not satisfied that there was here any agreement to observe the National Working Rule. If there were, two things would be true. First of all, that Mr Medlicott could not seek any relief under Section 12; but secondly, that he would be out of court completely, so to speak, because he has not applied to the Conciliation Panel, as he himself admitted; he would have to do that before he could make this claim against his employers under the Agreement".What they in fact said was:
"With regard to the claim for guaranteed pay the Tribunal has no jurisdiction because of the Exemption Order."
That appears to us, with great respect to the Members of this Tribunal, a strange statement and not one that can be taken literally. It is not the Exemption Order which deprives the Tribunal of jurisdiction, but what the Exemption Order relates to, namely, the collective agreement, under which it is a condition precedent that there should be a decision by the National Conciliation Panel before any party resorts to the Industrial Tribunal.It appears to us, therefore, that the Industrial Tribunal, however well or badly they have expressed themselves, decided that they would accept jurisdiction under Section 12 and they made the finding that he had had the appropriate statutory amount of £13.65 a day for the 5 days, and that therefore he had received all that he was entitled to.Had they decided matters otherwise, they would have been obliged to decide that he was, so to speak, out of court and was not entitled to anything. But they took in favour of Mr Medlicott a different view. It is unfortunate, speaking for myself only, that I was very much muddled by the way the Tribunal had put it and also concerned at the fact that the order made by this Employment Appeal Tribunal, presided over by Mr Justice Wood, its president, on the 25 May, that full documentation should be produced to the Employment Appeal Tribunal to include the Exemption Order, was not complied with at first. But Mr Gorton, when we expressed our dissatisfaction and confusion, very kindly straight away did his best to obtain for us what he could, and in particular, the Order concerned, which contrary to his belief does set out the material terms and thus we have been made rather more easy in our own minds.We think, therefore, that the decision of the Tribunal, which is confusing when one first reads it, becomes quite clear. In those circumstances we are entirely satisfied that there is no error of law on the part of this Industrial Tribunal. Our only concern is with errors of law, we are not able in any way to examine the facts afresh, or to depart from the findings of fact of the Industrial Tribunal. In those circumstances the appeal falls to be dismissed.