Executive Group Ltd v Tierney & Ors [1999] UKEAT 1162_98_0202

EAT

Executive Group Ltd v Tierney & Ors

[1999] UKEAT 1162_98_0202 · 1999-02-02

HIS HONOUR JUDGE C SMITH QC: This is an application for leave to proceed to a full hearing on an appeal by the employers before the Industrial Tribunal, Executive Group Limited, against a decision of an Industrial Tribunal held at Nottingham held on 3 June 1998 of which extended reasons were sent to the parties on 24 August 1998.

By that decision, the Industrial Tribunal held in relation to the Applicant before them, Miss Tierney, that she had not been dismissed by the employers so her claim for unfair dismissal and a redundancy payment failed but they further held that the Applicant's employers were in breach of contract with Miss Tierney and she was entitled to damages in the sum of £3,844.80 which was calculated over a period of 32 weeks up until 9 January 1998 dating from the time when she was first told she had to work nights although she had contracted only to work days.

There were also findings by the Industrial Tribunal relating to the other three Applicants before them. They were held entitled to sums of money by way of unlawful deductions from their wages up until 15 July 1997. We need say no more about their position because Mr Diamond clearly said that he is not pursuing any appeal in relation to their cases. Before we come directly on to the point that is being taken as being arguable, we remind ourselves that the Applicant only has to show an arguable point in order to have leave to proceed to a full hearing.

The facts as found by the Industrial Tribunal are not really in dispute. Each of these Applicants including of course Miss Tierney (when we say Applicants we mean Applicants before the Tribunal including Miss Tierney) had originally been employed, as appears from the Industrial Tribunal decision, by the British Railways Board. That employment had transferred to the Applicants before us, namely the Executive Group Limited, on 8 December 1996. All the Applicants including Miss Tierney were employed as carriage cleaners. That was their duty and it was a condition on the findings of the Industrial Tribunal of their employment, including Miss Tierney, that they worked days. They were day shift workers. Then there came a time when trains had to be cleaned at night with effect from about 1 June 1997. So they were all notified, including Miss Tierney, that they had to work the night shift instead of the day shift or a different shift (whether it is actually described as a night shift is another matter but quite different hours at any rate) from their contracted hours.

They turned up for work (on the findings of the Industrial Tribunal) on 1 June 1997 to work days but were sent away. The Industrial Tribunal found that thereafter, as we understand their findings, that the Applicants remained ready, willing and able at all material times to work days but the Applicants before us provided no work and refused to pay them, requiring them to clean the trains at night. There was a disciplinary meeting on 21 July when the Applicants including Miss Tierney reconfirmed their willingness to work days and the Applicants before us accepted, on the findings of the Tribunal, that their employment was then continuing, that is at the end of paragraph 3.

Then the Industrial Tribunal made important findings with regard to Miss Tierney's position in paragraph 4:

"Miss Tierney who was not receiving any income as a result of the non-payment of her wages was looking for other work. Eventually on 9 January 1998 she obtained a new job which was cleaning railway carriages for another company. She notified her Union of what had occurred but she said nothing to the Respondent. She then brought a further claim alleging unfair dismissal and claiming a redundancy payment. She also claimed breach of contract."

The Industrial Tribunal went on to make these findings in paragraph 7:

"We are satisfied that Miss Tierney was not dismissed by the Respondent when she left their employment in January 1998."

That was clearly a reference to their earlier finding that she had left on 9 January 1998.

Returning to paragraph 7 again:

"Although the Respondent was in serious breach of its contact with her in not paying her, the Applicant has done nothing to show by her words or conduct that she was accepting the repudiation. In fact she had found alternative work and left. We took account of the recent case of Holland v Glendale Industries Limited reported in the Times 20 May 1998. "

Then in paragraph 8, second line:

"Each time the Applicant was not paid wages due to her the Respondent was in breach of his contract."

It is clear, in our judgment, both from that paragraph and also from paragraph 9 that the Industrial Tribunal were finding that at all times the Applicants remained willing to work and that the employers were in continuing breach of contract. As far as Miss Tierney is concerned, on our understanding of the decision of the Industrial Tribunal, that remained the position up until 9 January 1998. So it is in that context that the Industrial Tribunal in paragraph 10 awarded Miss Tierney the sum of £3,844.80 for the 32 week period of her loss up until 9 January.

The point that is now taken as a potential ground of appeal is a point that was not in fact taken before the Industrial Tribunal. The point that is now taken is to the effect that the Applicant, Miss Tierney cannot bring herself within the relevant provisions of the Industrial Tribunals Extension of Jurisdiction Order 1994 since it is submitted to us she cannot bring herself within the relevant time limit provisions. By Article 3 of the 1994 Order it is provided that the Employment Tribunal's jurisdiction is extended so as to include proceedings for breach of contract. One of the qualifying conditions is contained in Article 3(C) namely, "if the claim arises or is outstanding on the termination of the employee's employment" and it is Article 7 which prescribes the time limits. Article 7 provides:-

"Time within which proceedings may be brought . An Industrial Tribunal shall not entertain a complaint in respect of an employee's contract claim unless it is presented (a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim or (b) where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which is terminated or (c)....."

and then there is a provision which provides for an extension if it is not reasonably practicable to present the complaint within the relevant period.

Those are the relevant time limits. It is pointed out, correctly, that there was no effective date of termination within the meaning of Section 97 of the 1996 Act in the case of Miss Tierney's contract since she left her employment without giving notice which does not appear to fall within Section 97.

(a) However Article 7(b), we repeat, provides that

"where there is no effective date of termination, the claim must be presented within the period of three months beginning with the last day upon which the employee worked in the employment which is terminated."

The short point which is taken is that although she was ready, willing and able to work on 9 January as is clear from the findings of the Tribunal, she did not acutally work and therefore cannot bring herself within Article 7(b). The argument is, as a matter of law, that mere readiness to work does not fall within the wording of the Article. But, in our judgment, as a matter of industrial relations common-sense and giving the proper purposive interpretation of this Article, the proper and sensible meaning of the words, in their context, "the last day upon which the employee worked in the employment which is terminated" must be apt to include the last day upon which the employee was ready, willing and able to perform all or any duties which he could be called upon properly to perform under the contract of employment. To give any other meaning to those words would not make any kind of industrial relations sense and in so concluding I, as the legal Chairman, have been greatly assisted by the approach the members with whom I sit take with regard to this particular matter.

Accordingly, we take the view that it is quite clear that the last day upon which Miss Tierney worked within Article 7(b) was 9 January and accordingly that her claim was within time and properly presented to the Industrial Tribunal. The Industrial Tribunal were entitled to make the award they did and there is no arguable ground of appeal which we can see against their decision so that this application will be dismissed.