Ryford Ltd v Drinkwater [1995] UKEAT 723_94_2405

EAT

Ryford Ltd v Drinkwater

[1995] UKEAT 723_94_2405 · 1995-05-24

JUDGE C SMITH QC:

The Appellants, Ryford Limited, appeal against a reserved decision of an Industrial Tribunal sitting at Birmingham on 29 April 1994 and promulgated on 9 June 1994 whereunder the Industrial Tribunal ordered that the Appellants should pay the Applicant, the Respondent before us, Mr Drinkwater, the sum of £30.66.

We have been greatly assisted by submissions made before us today from Mr Lloyd, a solicitor, on behalf of the Appellants and Mr Linden of Counsel on behalf of the Respondent.

Small though the sum is in issue between the parties, they regard the matters raised on this appeal as being of some importance and, indeed, in our judgment, the appeal does involve a question of the proper interpretation of s.168 of the Trade Union and Labour Relations Consolidation Act 1992 ("the 1992 Act").

As I say, the appeal does turn, in our judgment, on the proper interpretation of certain provisions in the 1992 Act, especially s.168, relating to certain rights which employees, who are members of recognized trade unions, possess in relation, amongst other things, to time off for trade union duties and activities. In particular, this appeal involves consideration of s.168(1), (3) and (4) and also s.172.

The short point which we have to consider is whether, in order for an employee to present a complaint to an Industrial Tribunal that an employer has failed to permit him to take off time for trade union duties, it is necessary for the employee to demonstrate, on the balance of probability, not only that he has sought such time off by way of a suitable request but also that that request has come to the notice and knowledge of the appropriate representative of the employers and that, having had such notice of it, the employers have either refused it, ignored it or simply not dealt with it. It is the submission of the Appellants that the request must come to the knowledge of the employers as a requirement of s.168 before a complaint can be made to an Industrial Tribunal, whereas it is the submission of the Respondent that no such knowledge on the part of the employer has to be established before a complaint can be made by the employee under s.168(4). That is the issue stated shortly.

At all material times the Respondent before us was a shop steward for the TGWU and was part of the annual negotiating team on pay round discussions between the Union and the employers of a perfectly ordinary and apparently seemingly well-organized kind. It is common ground that on 9 August 1993 the Respondent, who was a plastic moulder by employment, was working on a nightshift on that particular day commencing at 6 pm and due to finish at 6 am the following morning. It is also common ground that he left the shift at midnight and that between about 10 am and 1 pm, the exact hours do not matter in this case, on 10 August 1993 he attended "an external stage conference" which, it is common ground, was a trade union duty within the meaning of the time-off provisions. It is further common ground that the Respondent was not paid by the Appellants for the six hours between midnight and 6 am, totalling £30.66, and that, however his claim falls to be characterised, which is a matter we will have to consider, by his application to the Industrial Tribunal he was seeking payment of that sum from the Appellants. It was that sum in respect of those hours which the Industrial Tribunal decided that he was entitled to be paid by the Appellants.

It is also accepted before us that the Appellants cannot go behind the finding of the Industrial Tribunal that, in all the circumstances, the time off was reasonable for the reasons given by the Industrial Tribunal, especially in paragraph 6 of the decision. The Appellants accept that for the purposes of this appeal the Industrial Tribunal was entitled to conclude that time off during which Mr Drinkwater could take the necessary rest in order to refresh himself in time for the external stage conference was correctly characterised as time off for the purpose of carrying out trade union duties and was reasonable.

It is apparent, in our judgment, from the findings of the Industrial Tribunal at paragraphs 5 and 6 and from the evidence before them - although we may say we have had some difficulty in construing parts of these findings but it is not necessary for us to go into detail as to why - that it was only late in the afternoon sometime about 4 o'clock of 9 August that the Respondent put in train his request for time off. As we say, the Industrial Tribunal dealt with the matter in paragraph 5 and at the conclusion of paragraph 6 of the decision, where they made an apparent finding of fact that:

"There was no evidence that the respondent had refused permission but equally no evidence that they had agreed to his request to leave shift early."

We note in passing that there appeared to be evidence from Mr Coleman, who was the works director, that he did not give permission at any stage because he was not asked for permission for time off by the Respondent. It appears that no argument was addressed to the Industrial Tribunal that any permission, which may or may not have been given by a foreman could possibly be enough and the case before the Industrial Tribunal appears to have been conducted on the basis that the Respondent knew that he had to get permission from the works director, Mr Coleman. That seems to be apparent on the face it from evidence given by Mr Drinkwater himself before the Industrial Tribunal. However, we make it clear that we are making no firm findings in relation to such matter. It is not the duty of this Employment Appeal Tribunal to make any such findings nor do we purport to do so in any way at all.

The Tribunal held, despite a finding that there had been no refusal of permission, to which I have already referred, that the Appellant was entitled to the payment claimed and made a declaration accordingly. As mentioned earlier, they accepted that the application was a reasonable one for time off under s.168(3) and, having considered the arguments on reasonableness, came down in the Appellant's favour. Before we can reach our conclusion with regard to whether the Industrial Tribunal erred in law in relation to their findings and their decision, it is necessary for us to consider the relevant legislation. Unfortunately, the Industrial Tribunal proceeded, incorrectly, as is now common ground, on the footing that the provisions of the 1978 Act applied, whereas it is clear from the dates and as is agreed between the advocates representing the parties before us, that the applicable statutory law is to be found, as I have already said, in the 1992 Act.

By s.168 of the 1992 it is provided that:

"An employer shall permit an employee of his [who is a trade union employee, as I will call the employee by way of shorthand] to take time off during his working hours for the purpose of carrying out"

trade union duties subject to the question of reasonableness, which is dealt with in subsection (3) of s.168. Section 168(3) provides that:

"The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant provisions of a Code of Practice issued by ACAS."

By subsection (4) of s.168, if an employer fails so to permit and the words of the subsection are, in fact:

"... his employer has failed to permit him to take time off"

an employee may present a complaint to an industrial tribunal.

By s.172(1) and (2), in dealing with such a complaint, it is provided that:

"Where the tribunal finds a complaint .. is well-founded, it shall make a declaration to that effect and may make an award of compensation to be paid by the employer to the employee.

(2) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to the employer's default in failing to permit time off to be taken by the employee and to any loss sustained by the employee which is attributable to the matters complained of."

That is a statutory right given to a trade union employee, using the shorthand again, namely a right to be compensated for a failure on the part of an employer to permit him time off for his trade union duties.

There is a second statutory right conferred on a trade union employee by s.169 and s.172(3) of the Act, namely a right to payment for time off under s.168. By s.169(1):

"An employer who permits an employee to take time off under section 168 shall pay him for the time taken off pursuant to the permission."

There are consequential provisions providing how the payment should be calculated and by s.169(4) a trade union employee may present a complaint to the Industrial Tribunal that an employer has failed to pay him for time off pursuant to this section.

By section 172(3):

"Where on a complaint under section 169 the tribunal finds that the employer has failed to pay the employee in accordance with that section, it shall order him to pay the amount which it finds to be due."

It is clear that this is a mandatory requirement as opposed to the discretionary power to award compensation for failure to permit time off, which is conferred by s.172(1). That is the second statutory right which the trade union employee has.

In our judgment, while it is necessary to establish either right that the trade union employee should establish that the time off was for the purpose of carrying out his duties as a trade union official and was reasonable within s.168(3), the two rights are quite distinct and separate. In our judgment, the right under s.168 is a right to discretionary compensation arising from a failure of the employer to permit such time off whereas the right under s.169 is for paying for such time off which has been taken by the employee with the employer's permission.

We have felt it necessary to set out this legislation in some detail because of the difficulties that arise from the arguments that have been addressed to us on this appeal.

The first difficulty which arises in the present appeal, which has given rise to submissions, is that the parties disagree as to which right the Respondent was, in fact, claiming in the first place and, secondly, as to what remedy the Industrial Tribunal purported to confer upon him by awarding him the sum of £30.66.

It was the first part of the Appellants' argument before us that it was clear that the Respondent was, in fact, claiming payment for time off he had taken with permission. If this be right, it would follow that to succeed in such a claim, the Respondent needed to establish that he had, in fact, got permission to take time off under s.169(1). The argument was, therefore, that since the Industrial Tribunal has found as a fact that there was no evidence that he had such permission, his claim must fail.

However, it was argued by the Respondent that that was an incorrect characterisation of the claim and, indeed, the way the Industrial Tribunal dealt with it. It is apparent, submitted the Respondent, that if one looks at the originating application and one looks at the answer to the originating application and one looks at the decision of the Industrial Tribunal, and one takes all the relevant factors into account, that the Industrial Tribunal were in fact dealing with a claim that was being made for compensation under s.168(4) of the Act.

We consider, although the matter is not altogether free from difficulty, not least because the Industrial Tribunal were applying the wrong legislation, that the Respondent is right in submitting that the claim was made under s.168 and that it was dealt with by the Industrial Tribunal under s.168(4) and consequentially under s/172(1) and (2).

We do not propose to give lengthy reasons for our judgment in this regard. It is plain, however, to us that a declaration was granted by the Industrial Tribunal, which is only consistent with their dealing with the matter under s.172(1), and that they considered the ACAS code, which again is consistent in our judgment with their having considered a claim under s.168(4). Also, since they plainly held that no permission had, in fact, been granted, it would have been absurd for them to have thought they could have been dealing with a claim under s.169, since before a claim could get off the ground under s.169 an employer has to have given permission to an employee to take time off, so that we accept the argument of the Respondent on the first point.

However, that brings us on to what is really at the heart of this appeal, in our judgment. The submission is made to us by the Appellants that if the Respondent's claim was truly made and dealt with under s.168(4) for compensation for refusal on the part of the Appellants to allow him time off here again the claim must fail and should have failed before the Tribunal because the Industrial Tribunal not only found that there was no evidence that he had such permission but also found that there was no evidence that the Appellant had ever refused such permission.

The Respondent, on the other hand, submits that in order for a complaint to be presented and a claim to be made under s.168(4), there is no requirement, on the proper construction of s.168, for the employee to establish that the request which he made for time off has come to the notice of the employer. It was submitted that on a proper reading of s.168(4) an employer can fail to permit a trade union employee to take time off in circumstances not only where there is a positive refusal but also where there is no evidence that the designated member of the employers' management team was aware that a request for time off had been made at all. It was submitted by Counsel for the Respondent that the question whether the employer knew or did not know of the request for time off simply goes to the question of reasonableness under s.168(3) where, he accepts, it may be an important question. In other words, the submission is made that it is not in any way a bar to a claim for failure to permit time off that the employer was unaware of the request for time off. Provided permission has not, in fact, been given for time off, there can be a claim for compensation and then the issue of whether or not the request came to the notice of the employer can be considered under the rubric of reasonableness under subsection (3).

That is the argument which is at the heart of this appeal because the submission is made to us that if that is the correct interpretation of the Statute, looking at the Industrial Tribunal's decision as a whole, it is unexceptionable and should be upheld. Whereas it is accepted by the Counsel for the Respondent, although of course the decision must be that of the Employment Appeal Tribunal, that if that is not the correct interpretation of s.168 the Industrial Tribunal has erred in law in their approach to the matter and it is accepted by both sides in that event that the matter would have to go back to the Industrial Tribunal for further consideration.

Accordingly, the issue we have to decide is whether, in order to succeed in a claim for compensation for failure to permit time off, the employee must prove, on the balance of probabilities, not only that(a) a request was made by him for time off but also

(b) that that request had come to the knowledge of the employers by their designated representative and that they have either refused it, or ignored it, or in some other way, knowing of it, simply failed to deal with it. We repeat, it is the Appellants' submission that all those elements must be proved, including the element that the request had come to the notice of the employers, but it is Mr Linden's submission that the second element, namely that the request has come to the notice of the employers by their designated representative, does not have to be proved in order to found a claim. His submission was that in legislation of this kind, dealing with industrial relations, there should be a purposive interpretation in favour of commonsense and good industrial relations and that s.168 should be construed accordingly. He submits that the question whether or not an employer, in fact, knew of the request can be dealt with under subsection (3) of s.168 and it is his submission that that is what Parliament intended. He also submits that to decide that the employee must prove on the balance of probabilities that the request has reached the right person within the employers' organization will give rise to all sorts of problems, of agency, ostensible authority, and similar difficulties. He submitted that such an interpretation would be open to abuse by employers making it difficult for employees to assert the rights which Parliament has given them.

We have looked at this matter with care and, doing the best we can, we are quite satisfied that the proper construction of s.168, by way of construction of ordinary words of the English language, plainly requires that the employer should know of and be apprised of the request for time off before he can "fail to permit" time off. In our judgment, you can only "permit" or "allow" something if you know what is being asked of you. Similarly, you can only "fail to permit" or "refuse to allow" something if you know what is being asked of you. In our judgment, the concept of permission must import knowledge of a request for permission. We derive assistance from the use of the verb "failed" in the expression "failed to permit". You can only "fail" to give permission if permission has been sought of you, in our judgment. Similarly, s.172(2) speaks of the employer's "default" in failing to permit time off.

For those reasons we are satisfied that it is necessary for an employee to establish that his request has come to the notice of the appropriated designated representative of the employers before he can say that the employer has failed to permit him to take time off and, accordingly, that is a necessary prerequisite to his making any claim under s.168(4). We do not think that this question of whether the employer knew of a request for time off can be subsumed under subsection (3) because that subsection is concerned, in our judgment, specifically with the amount, the purpose for which, the occasion on which and the conditions subject to which, time off may be taken. Thus, in our judgment, subsection (3) appears to assume that a request has been made and has come to the notice of the employer so that the employer as well as the employee, can consider the specific matters in subsection (3), namely, questions as to the amount which, the occasions on which, the purposes for which, and the conditions subject to which time off may be taken.

An additional reason which confirms us in our view is that in our judgment there would be no such difficulties in practice over who is the authorised person to receive a request for time off within any given organization of an employer. Who is the authorized person to deal with such a request, in our judgment, admits to a clear and straightforward answer, and if an employer were to prevaricate or attempt to make difficulties in the way of notification of such requests, which seems to us to be in the highest degree unlikely, no doubt, pressure could be brought and, no doubt, would be brought upon such an employer by the union concerned, bearing in mind we are dealing here with independent unions who are recognized by the employer. Additionally, we are confirmed in our construction of s.168 by our view that although there are, of course, two sides to this matter and two interests to be considered, namely, those of the employer on the one hand and those of the employee on the other, it is right and fair and just that the employer should know the nature of the request, so that he can consider it fairly and properly or, at least, consider it before he lays himself open to being taken by way of complaint to an Industrial Tribunal and to the possibility that he may have to pay a compensation under s.172(2).

Accordingly, in our judgment, even if one were to apply a purposive interpretation of s.168 and an interpretation that is designed to deal with the mischief aimed at, or the purpose to be achieved, by this section, it is important in our judgment that the matter should be brought to the notice of the employer before he can be said to have failed to permit time off. That must be part of good industrial relations.

In the light of that finding, we uphold the argument accordingly of the Appellants on this point. We are satisfied in the result that the Industrial Tribunal here, on a fair reading of their decision, did not properly appreciate that before they could award any sum to the Respondent by way of compensation under s.168 they had to be satisfied on the balance of probabilities that the employers knew of his request for time off. We have had to consider long and hard whether, in the light of their findings, they were plainly satisfied that the employers did not know of any request for time off. However, having looked at the matter carefully, we have reached the view that the right interpretation of their decision is that they simply did not deal adequately with the evidence in relation to this matter or reach the necessary findings of fact in relation to it.

Accordingly, and this is agreed by both sides, in our judgment, the correct course for us to take is to direct that the matter should be remitted back to the same Industrial Tribunal in order that they can deal with that particular issue. We would direct the Industrial Tribunal that on a proper construction of s.168 before an employee can establish a right to compensation under s.168(4) he must establish, on the balance of probabilities, that a request was made for time off, that it came to the notice of the employers' appropriate representative, and that they either refused it, ignored it or failed to respond to it. It is in the light of that direction that, subject to hearing any further argument, we would propose that this appeal be allowed and the matter remitted to the same Industrial Tribunal for further consideration in accordance with the direction which we have given arising from our interpretation of s.168.