Chandler v CHUBB Wardens Ltd [1998] UKEAT 888_97_1003

EAT
Chandler v CHUBB Wardens Ltd
[1998] UKEAT 888_97_1003 · 1998-03-10
MR JUSTICE MORISON (PRESIDENT) : This is an appeal against a decision of an Industrial Tribunal which was held at Stratford on 29th May 1997. It was a case which at that stage was concerned with alleged unauthorised deductions of wages.The case had been before the Industrial Tribunal on an earlier occasion on 19th February 1997, when the Industrial Tribunal adjourned the matter because they did not have sufficient time to deal with it. That tribunal chaired by Mr Geoffrey Heggs, a very senior Regional Chairman of the Industrial Tribunal - now retired - very sensibly obtained from Mr Chandler particulars of the deductions about which he was making complaint. They noted in the decision which sent to the parties on 3rd March 1997, that it was Mr Chandler's contention that his supervisor, Mr Jones, had told him that his hourly rate had been increased to £4.00 per hour, but that nonetheless despite that agreement, he was continued to be paid at £3.35 per hour.When the matter came on for hearing on 29th May 1997, one of the matters in issue was the contention by Mr Chandler that Mr Jones had agreed a £4.00 hourly rate. In paragraph 11 of their decision, the tribunal said this:
"11 Mr Chandler makes two claims for unauthorised deduction of wages. The first is in relation to back pay. He claims that in conversation with Mr F Jones, between January and February 1996 before he was dismissed, Mr Jones said that he would be paid £4 per hour instead of £3.40 per hour. This is denied by the Respondents. Mr Jones was not available to give evidence. The Tribunal noted that it would have been open to Mr Chandler to apply to the Industrial Tribunals for a witness order and this he failed to do. It is therefore the unanimous decision of the Tribunal that Mr Chandler has not proved that he is entitled to back pay and therefore his claim in respect of back pay fails."
The appeal was allowed to go forward for a full hearing because the Employment Appeal Tribunal was concerned to discover that the Industrial Tribunal was criticising Mr Chandler for not having called Mr Jones as a witness. It seems to us that the Industrial Tribunal's approach to this matter is wrong. Had Mr Chandler applied to them for a witness order against Mr Jones, we have little doubt but that the tribunal would have refused to grant such an order on the basis that it would not have been of assistance to Mr Chandler's case. A party who calls another party's representative is inherently unlikely to obtain much assistance from such a witness, and it is to be noted that had Mr Chandler called Mr Jones and had Mr Jones denied that there had been any such agreement, Mr Chandler would have been unable to cross-examine him. It would therefore have been a perfectly legitimate exercise of the Industrial Tribunal's discretion had they refused to grant a witness order in those circumstances. That being so, it seems to us to be manifestly unfair and incorrect for an Industrial Tribunal to place reliance on the failure by an unrepresented applicant to seek a witness order against his former employer's representative and to decide the case on that basis against him.Today, we have taken care to enquire of Mr Chandler what it was he says took place in the conversation between himself and Mr Jones. He told us and, we accept unhesitatingly, that during the conversation which took place in January or February of 1996, Mr Jones pointed out as follows:

"I should get £4 per hour."

Mr Chandler took that as an indication that he was entitled to £4.00 per hour at least as from the time when that conversation took place. But I think he accepts that it was also consistent with what he heard Mr Jones to be saying, that the £4.00 per hour would be the rate of pay which he would receive as from the following April. It is to be noted that his pay had increased from £.3.35 per hour by 5p as from April the previous year. It appears, therefore, as Mr Chandler accepted, that the payment year dated from April. In those circumstances, had Mr Chandler given that evidence to the Industrial Tribunal, we have no doubt that they would have been perfectly entitled, and bound, to say that that did not constitute evidence which was sufficiently clear to establish a binding promise to pay £4.00 per hour as from the date when that conversation took place. As we say, it is regrettable that they should have expressed their decision in the way that they have, criticising Mr Chandler for something which he could not be expected to have done.Mr Chandler also says that he anticipated that he would be entitled to be given holidays in substitution for the statutory Bank Holidays which he worked. He was employed by the respondent Company, Chubb Wardens Ltd, as a contract warden, and had been employed by them from October 1994 to 27th March 1996. During that time he had worked long hours, almost all of them at night, and had worked on 11 statutory Bank Holidays. It was his view that when his employment ceased, in regrettable circumstances, he would have been entitled to compensatory payments or leave in respect of the statutory Bank Holidays that he had been working.The law is that there is no presumption in favour of an employee receiving holiday entitlement, or indeed, holiday pay, whether ordinary holidays or in relation to statutory Bank Holidays. It is entirely a matter to be dealt with by the contract of employment, and in the absence of some custom or practice, it is on the express terms of the contract that Mr Chandler must rely.In this case, we have seen the contract of employment. It is a somewhat remarkable document in our experience. It provides that people such as Mr Chandler are neither entitled to holiday nor any holiday pay save at management's discretion. In relation to statutory Bank Holidays, there is an hourly rate inserted into the contract, but the amount of the hourly rate in his case was left blank. We regard that as reprehensible on the part of the employer. We hope very much that this judgment will be communicated to the employers who have, as we understand, recently been taken over. They are large and its seems to us incumbent on them to treat their employees properly and fairly. It seems to us to be unsatisfactory and undesirable that parts of the contract of employment should not be completed and it will be a matter for them as to whether they wish to continue with a policy of leaving holiday pay and the taking of holidays entirely in management's discretion, or whether in the late 20th century it would not be more appropriate to provide their wardens, who work long hours and sometimes unsocial hours, with some kind of holiday entitlement and remuneration.It seems to us that in respect of neither of these two matters in law had Mr Chandler got a valid complaint against the conclusion reached by the Industrial Tribunal. We have considerable sympathy with him. We think he was dealt with incorrectly by the Industrial Tribunal in relation to his first complaint, but we are unable to reach a decision which effectively provides him with any further money. Accordingly, the appeal will be dismissed.