Employment Service v Guy [1996] UKEAT 277_96_0310

EAT
Employment Service v Guy
[1996] UKEAT 277_96_0310 · 1996-10-03
MRS JUSTICE SMITH: This is an appeal from an Industrial Tribunal sitting at Middlesbrough, whose decision was sent to the parties on 22 January 1996.The Tribunal held that the Appellants, the Employment Service, had failed to comply with their statutory duty, pursuant to section 29 of the Employment Protection (Consolidation) Act 1978, to permit their employee to take time off from her employment in order to perform public duties as a member of the Langbaurgh Borough Council.Section 29 of the 1978 Act, so far as relevant to this appeal, provides as follows:
"(1) An employer shall permit an employee of his who is - (b) a member of a local authority,
to take time off, subject to and in accordance with subsection (4), during the employee's working hours for the purposes of performing any of the duties of his office or, as the case may be, his duties as such a member.(3) For the purposes of subsection (1) the duties of a member of a body referred to in paragraphs (b) to (f) of that subsection are:-(a) attendance at a meeting of the body or any of its committees or sub-committees;(b) the doing of any other thing approved by the body, or anything of a class so approved, for the purpose of the discharge of the functions of the body or of any of its committees or sub-committees.(4) The amount of time off which an employee is to be permitted to take under this section and 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, in particular, to the following:-(a) how much time off is required for the performance of the duties of the office or as a member of the body in question, and how much time off is required for the performance of the particular duty;(b) how much time off the employee has already been permitted under this section or [sections 168 and 170 of the Trade Union and Labour Relations (Consolidation) Act 1992. ...];(c) the circumstances of the employer's business and the effect of the employee's absence on the running of that business."The remedy which is provided for an employee who complains under this section is a Declaration as to whether the time off allowed by the employer has been reasonable or unreasonable.In this case the Industrial Tribunal found that the Respondent, Mrs Guy, had been employed by the Appellants since 1986. She worked as a Client Adviser and held the grade of Executive Officer (EO) on Management Pay Band 7. This was a skilled job and a responsible position. She had to interview unemployed people for the purpose of advising them as to the best means by which they might obtain employment. The department in which she worked was managed by a Mrs Robson. There were about 30 employees in the department, of whom seven or eight were Executive Officers. There were only two Client Advisers at the Executive Officer level.In April 1995 Mrs Guy told her employers that she wished to stand for election as the Councillor for Saltburn on the Langbaurgh Borough Council. In May 1995 she was duly elected. Soon afterwards she made a request for time off, based on what she expected she would require.The Tribunal record that she asked to be allowed 23 days off work during the remainder of the year. We have been told today, although it was not clear to us from the decision, that this meant 23 days between May and December. We did not know, because the decision of the Tribunal does not tell us, whether she asked for 23 whole days or for absences of less than a whole day, which would in total amount to 23 days. However, we have now been told that the request anticipated that she would require half a day off on each occasion when she required to be released. Thus, it appears that she estimated her requirement at 46 half days in the remaining six months of 1995.The Tribunal record that the response from Mrs Robson was to offer 12 days paid special leave. Mrs Guy was told that any further leave would have to be taken in her own time. That meant apparently, that she could take it by adjusting her hours of work through flexitime or that she could use her holidays or take unpaid leave. It is not clear to us from the decision whether those 12 days were to be allowed over a whole year of 12 months or during the remainder of the calendar year of 1995. Mrs Robson also told the Respondent that each request would have to be made two weeks in advance and would require separate consent, which would be considered in the light of the operational needs of the department at the time. We have been told today, although this does not appear in the decision, that the reason for this requirement was that the clients whom Mrs Guy would interview made their appointments two weeks in advance. Plainly, if it was known well in advance that Mrs Guy was to be off for part of a particular day, it would be possible to avoid bookings on that day.Mrs Guy was dissatisfied with the offer made by Mrs Robson and took her complaint through the Appellants' grievance procedure. She met with no success so she made an application to the Industrial Tribunal. By the time the matter came before the Tribunal in December 1995 Mrs Guy had been a Councillor for about six months. During that time the Tribunal record that she had been granted time off on 39 occasions but had been refused on 29 occasions. In all she had made 68 requests for time off. The Tribunal do not record whether those requests were for long or short periods of time. We were unsure on reading the decision whether they were, for example, requests for a whole day off or whether they involved only leaving an hour early in the afternoon. However, there seems to be no dispute that the requests for all were for half-day absences. The Tribunal record that on occasions Mrs Robson had waived the requirement of two weeks' notice.Apart from that which we have just indicated, there is no explanation in the decision of the nature of the public duties which Mrs Guy had hoped and intended to perform and which duties she had been prevented from carrying out. For example, we do not know whether full Council meetings took place during working hours or whether her requests related to attendance at sub-committee meetings or meetings with Executive Officers of the Council. Nor do we know the extent to which her Council duties were curtailed by the refusal of her requests. We know only that 29 requests out of 68 were refused.For the employers the Tribunal heard evidence from Mrs Robson and Mr Pringle, the Regional Personnel Officer. We understand that Mrs Robson sought to explain the difficulties which would have been encountered were Mrs Guy to have been allowed to take off more time than she had been permitted. However, there is no summary of what she said. The Industrial Tribunal noted only that on some occasions when a request had been made, up to one third of the staff in her department were absent for one reason or another. There is no explanation of what effect Mrs Robson claimed that had had on the functioning of the department or what additional effect the absence of Mrs Guy would have.As to Mr Pringle's evidence, the Tribunal noted that the Appellants' policy on the issue of time off for public duties was set out in their handbook. There they recognised their statutory duty to allow time off and it was plain that they accepted that Mrs Guy's position as a Councillor entitled her to time off to perform her public duties. Mr Pringle said that in his region it was usual for employees, who were also Magistrates, Councillors or School Governors to be allowed time off, but usually with a limit of 12 days per year, depending on staffing needs.The Tribunal noted that the employers were a large organisation employing some 40,000 staff. They did not make any special provision in their staffing levels for employees who would seek time off for public duties, although they did take account of employees who would require time off for Trade Union activities or duties.The only question for the Tribunal was whether, in all the circumstances, the employers had allowed Mrs Guy a reasonable amount of time off as required by section 29. It does not appear from the decision that any argument was addressed to the conditions which had been attached to the time off which was to be allowed.The employers argued that they had been reasonable bearing in mind the nature of the Respondent's position in the organisation and the manpower restrictions imposed on the employer. That was the argument as recorded by the Tribunal in their reasons. What those manpower restrictions were, we do not know, as the Tribunal have not described them.The task for the Tribunal was to balance the competing claims of the employee on the one hand, requiring time to perform her public duties and on the other hand, the needs of the employer to maintain a satisfactory level of operation in its business. Those are the two factors specifically referred to in sub-paragraph 4(a) and sub-paragraph 4(c) of section 29. It seems to us that sub-paragraph (b) was not a material consideration in the circumstances of this case. That would be a relevant consideration in a case in which a specific application for time off was under consideration. Here, the Tribunal were considering the general approach of the employer to the employee's request. So the function was to balance the sub-section (a) considerations and the sub-section (c) considerations.The arguments advanced on behalf of Mrs Guy were summarised very briefly by the Tribunal. It was said that the unreasonableness of the employer's stance could be seen from the 29 refusals in six months.The Tribunal referred themselves to the case of Borders Regional Council v Maule [1993] IRLR 200. In their decision they cited an extract from the headnote. This was a decision of the Scottish Employment Appeal Tribunal and it concerned a specific application for time off on one occasion. Nonetheless, the Appeal Tribunal gave some general guidance as to the approach which an Industrial Tribunal should adopt. It is accepted by both parties that this was a proper guidance for this Tribunal to apply. At paragraph 12 of their decision they cite as follows:
"In determining whether an employer was in breach of Section 29 in refusing to permit an employee to take time off for public duties, the statute requires the Industrial Tribunal to consider the whole circumstances, including the number and frequency of similar absences which have been permitted by the employer. In order to show that they have performed their statutory function it is necessary for the Tribunal to explain what considerations have been taken into account, and make some attempt to explain how those considerations have been balanced, before reaching the conclusion that the employer acted unreasonably."
At paragraph 13 of the decision the Tribunal continue thus:
"We have also been helped by the very full analysis of the demands on the applicant's time for public duties as a Councillor as disclosed by her own evidence and by the detailed analysis of her applications in the first six monthly period following her election. Similarly Mr Pringle's evidence as to the allowances made by the Service to other employees engaged in public work and the evidence of Mrs Robson as to the routine demands on her reduced staff have also cast considerable light on the conflicting demands on the Service, on the one hand to give a good service to the public and, on the other hand, to meet its obligations under Section 29."
In paragraph 14 they say:
"... For the record at no stage did the Service argue that the applicant was seeking more time off than was actually required for the performance of her duties.
Than at paragraph 15 they reach their conclusion:
"After careful consideration and balancing the conflicting demands on the Service, our unanimous conclusion is that the Service has, despite the requirement of Section 29(3)(c) not complied with its obligations under Section 29 and has not given the applicant reasonable time off to perform the duties of her office as Councillor. Hopefully, with further discussions between the parties, an acceptable solution will be reached even though this will probably result in the applicant receiving less time off than she has requested and will, as she accepts, involve her using some of her leave entitlement for such duties."
In this appeal the Appellants' complaint is that the Industrial Tribunal have not adequately set out the basis of their decision. They have said that they have balanced various factors and they have said, in very broad terms, what those factors related to but they have not explained what considerations have been taken into account and they have not made any attempt to explain why they reached their conclusion.Mr Pitt-Payne for the Appellants submits that the Tribunal ought to have identified the considerations which they were going to take into account. He says they have not done so. Then he says, they should say something which will explain why they have decided as they have. This will probably mean, he submits, that they will say which factors have weighed heavily in their minds and which have not. At the end of such a process, he submits, the parties will understand why they have won or lost and the Employment Appeal Tribunal will be able to see whether the Industrial Tribunal have directed themselves properly in law and whether they have taken relevant or irrelevant considerations into account. As things are, he submits, neither object is achieved.For the Respondents, Miss Moor drew our attention to the fact that it is not the Industrial Tribunal's function to decide what would have been a reasonable amount of time off for the employers to allow. The Tribunal is permitted only to say whether the amount in fact allowed was reasonable or unreasonable. That we accept is plainly right.She submitted that all the Tribunal had to do was to look at the considerations set out in section 29(4), balance the competing factors and come down on one side or the other. That, she submitted, they have done. She submitted that their duty did not go as far as Mr Pitt-Payne contended. She reminded us of the well known dictum of Lord Donaldson in the case of Martin v MBS Fastenings (Glynwed) Distribution Ltd [1983] IRLR 198, where at paragraph 19 his Lordship said:
"... The duty of an Industrial Tribunal is to give reasons for its decision. This involves making findings of fact and answering a question or questions of law. So far as the findings of fact are concerned, it is helpful to the parties to give some explanation for them, but is not obligatory. So far as the questions of law are concerned, the reasons should show expressly or by implication what were the questions to which the Tribunal addressed its mind and why it reached the conclusions which it did, but the way which it does so is entirely a matter for the Tribunal."
Miss Moor submitted that the facts were adequately set out in this case and that the reasoning behind the decision was implicit from paragraphs 13 and 15 of the decision to which we have referred.We regret that we cannot accept that submission. While we accept that it is not necessary for an Industrial Tribunal to explain its findings of facts in detail, it is necessary for them to state those findings or, if appropriate, as it may well be here, to summarise the effect of their relevant findings. We do not think they have done so, as has been illustrated in the course of this judgment, by reference to matters which we have not understood. To some extent we have permitted the lacunae in this decision to be filled by an agreed explanation from Counsel, but that is not satisfactory or indeed permissible.Second, the Tribunal must, as Lord Donaldson has said, show expressly or by implication why they have reached their conclusion. That, in our view, they have failed to do. We, as an Appeal Tribunal, have unanimously concluded that we do not know why the Tribunal decided as they did. It may well therefore be that the Appellants may justly complain that they do not know why they have lost.Our unanimous conclusion therefore is that this decision cannot stand in its present form. We have heard argument as to what should now happen. Mr Pitt-Payne seeks a complete re-hearing before a freshly constituted Tribunal. Miss Moor invites us to remit the case to the same Tribunal with a direction to produce further and more explicit reasons.We have come to the conclusion that that is the proper course. There is no reason at present to suppose that this Tribunal has misdirected itself in law. Indeed, rather the reverse. They have referred to an appropriate authority and have declared that they have followed it. The problem is that we cannot see whether they have done so.Mr Pitt-Payne's criticism, in a nutshell, was that the reasons of the Tribunal would have sufficed as summary reasons, but not as extended reasons. We think that that is a fair criticism but we would not go further than that.Thus, we remit the case to the Industrial Tribunal with a direction that they should provide further extended reasons. We consider that they should summarise the facts found, even though these were not disputed by the parties. They should then explain why they reached their conclusion. This will probably entail explaining briefly which factors weighed heavily with them and which they did not regard as so important or impressive.