Fraser v London Electricity Plc [1999] UKEAT 1066_98_0802

EAT
Fraser v London Electricity Plc
[1999] UKEAT 1066_98_0802 · 1999-02-08

JUDGE PETER CLARK :

By an Originating Application presented to the Central Office of Employment Tribunals on 11 July 1996 Mr Fraser brought complaints of unfair dismissal and breach of contract against his former employers, London Electricity PLC.On 22 October 96 a Chairman struck out the whole of his claim on the grounds that he had failed to comply with an Order for Further and Better Particulars of the Originating Application. Against that order the Appellant appealed (EAT 197/97). At a preliminary hearing held on 14 July 1997 a division presided over by Mr Justice Morison dismissed the appeal insofar as it related to the claim of unfair dismissal on the ground that the Appellant had not completed two years continuous service with the Respondent. The appeal was allowed to proceed so far as the breach of contract claim was concerned.The full appeal hearing took place before a division presided over by Mr Justice Kirkwood on 23 January 1998. The appeal was allowed and the breach of contract claim reinstated.That matter came before an Employment Tribunal sitting at London (South), Chairman, Mr D N Milton on 25 June 1998. By a decision with Extended Reasons dated 13 July 1998 that claim was dismissed. Against that decision the Appellant now appeals (EAT/1066/98). This is an ex parte preliminary hearing held to determine whether the appeal raises any arguable point of law.The Appellant was employed by the Respondent as a meter reader from 26 September 199 until his dismissal effective on 14 June 1996.His written terms and conditions of employment contained this clause, headed "Hours";
"Your contractual hours of duty are ten hours per week as determined by your Manager from time to time according to operational requirements. Yours hours of work will fall between the following time bands although these may vary from time to time according to business needs .... your contracted hours are part of the terms and conditions of your employment and it is a requirement of the post that you regularly achieve base performance ..... in addition to your basic hours you will have the opportunity to earn additional money in accordance with the company's PBR Scheme. This voluntary arrangement which in no way affects other terms and conditions of your employment from time to time the Company may exercise its discretion to alter the terms of this scheme subject to a month's notice."
The Employment Tribunal concluded that the Respondent was not in breach of contract. They found that the Appellant had been paid for the hours worked by him.In this appeal the Appellant is represented by Ms Laing of Counsel under the ELAAS Scheme. We have found her submissions particularly helpful.The first question is whether the Tribunal was entitled to conclude there was no breach of contract. Ms Laing submits that under the contract any work over and above the basic 10 hours was voluntary, whereas the Appellant was required to do such work involuntarily. Thus, the Tribunal were bound to conclude that the Respondent was in breach of contract.We reject that submission. It seems to us that the Tribunal found, permissibly on the evidence before it, that it was open to the Appellant, as with other employees, to limit his working hours to 10, in which case he would receive the basic minimum pay of £63.90. In practice he worked beyond the basic 10 hours but his complaint was that he was not properly remunerated for the further hours which he then worked under the PBR scheme. There was no breach of contract. His real complaint was that he received insufficient pay for the work which he did. The issue for the Tribunal was not one of the fairness of the contractual term, but whether it was broken. Plainly in our judgment the Tribunal were entitled to conclude that it was not and for that reason to dismiss the complaint.The Appellant by an affidavit sworn on 7 October 1998 and in written submissions, particularly sections B and D of a skeleton argument which has been put before us, in addition to the oral submissions made by Ms Laing, complains that the Tribunal was biased against him. Having read those submissions and that affidavit, we have reached the conclusion that there is no arguable case of bias or the appearance of bias on the part of the Tribunal which ought to go forward to a full appeal hearing.In those circumstances, we shall dismiss the appeal at this stage.