MR R GRANT v KENT COUNTY COUNCIL [2001] UKEAT 30_01_1105

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 30_01_1105Case No Appeal No. EAT/30/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R GRANTAPPELLANTKENT COUNTY COUNCILRESPONDENT
Before
Mr Justice Charles Mrs R Chapman Mr D A C LambertDate 11 May 2001
[1]APPEARANCES For the Appellant MR JOEL DONOVAN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE CHARLES : We have before us an appeal by way of preliminary hearing. The parties to the proceedings are a Mr Grant, who was the Applicant before the Employment Tribunal and Kent County Council. The appeal is against a decision of an Employment Tribunal sitting in Ashford, who heard the matter over a number of days and their Extended Reasons were sent to the parties on 10 November 2000.[2]The decision reflects the nature of the claims. It was that(i) the Applicant was fairly dismissed and his claim for unfair dismissal was therefore dismissed,(ii) the Applicant's claim for breach of contract was dismissed,(iii) his claim to strike out the Respondent's Notice of Appearance, and(iv) his application to add a new claim of unlawful discrimination on the ground of disability was refused.[3]The Notice of Appeal which was put in on behalf of Mr Grant, the Appellant, runs to some 43 paragraphs and raises an equivalent number of points of law on its face. Mr Grant also prepared a skeleton argument which expanded on those points and ran to some 149 paragraphs and made cross references to extracts from the bundle of documents that were before the Employment Tribunal.[4]To my mind, indeed to our minds, sensibly Mr Grant has accepted advice and assistance from an ELAAS representative today, Mr Donovan. He should be very grateful for that assistance and we would like to express our gratitude for it. In opening argument on behalf of Mr Grant, Mr Donovan indicated that he was abandoning the existing Notice of Appeal save for one ground which he had helpfully put as a draft amended ground. I should make it clear that abandonment was save insofar as that ground was contained in the Notice of Appeal. The ground identified was as follows: "The grounds on which the appeal is brought is that the tribunal erred in law in that in concluding that the Applicant had no contractual entitlement to be paid for being ' on call ', it failed to consider the existence of an implied term to that effect, as it should have done by reference to the ordinary characteristics of the employer/employee relationship and the ' officious bystander '/' business efficacy ' tests.[5]As to that, we were referred to paragraph 18 of the Extended Reasons which indicates that, certainly at one stage during the proceedings, Mr Grant was arguing a contractual entitlement on the basis of an implied term. This point was therefore before the Employment Tribunal.[6]We were taken to what were regarded as the most relevant provisions of the contract of employment contained in what is called the Blue Book which contains a number of terms standard to employees of the Council. The first provision we were referred to is at page 48 of the bundle and relates to overtime for employees on Grade F and above. The second provision we were referred to is set out in paragraph 14(3) of the Extended Reasons. In summary the first provision I have referred to relating to overtime provides, as the Extended Reasons show, that employees on Grade F and above should not be entitled to payment for overtime and then that is qualified with a proviso which is in the following terms:
"Exceptionally, it is possible to give time off in lieu and indeed employers on Grade F and above will be working hours in excess of 37 a week from time to time without recompense. Cases will arise where employees are required to work excessive hours for a period of time for some exceptional reason. In such cases consideration can be given to the payment of special payment using the following criteria [criteria are then set out]."
The other provision we were specifically referred to is in these terms:
"Staff should not be contracted to work hours of more than the standard 37 a week unless this is unavoidable for the proper performance of the job. But where such hours are to be worked the officer shall receive: either overtime payments in accordance with section 3 paragraph 12 of this Scheme; or such other payments or arrangements as may be determined locally."
[7]The argument that was identified by Mr Grant, through the ELAAS representative, is one that there is an implied term entitling Mr Grant to payment for being on call.[8]It seems to us, that additionally it can be reasonably argued that as a matter of construction of the clause I have just read that if there is not a locally agreed arrangement there would be an overtime payment. As was pointed out during the argument of the ELAAS representative a problem with that construction argument is that on-call payments do not equate easily to overtime payments and that is a matter that was recognised by the Employment Tribunal. As we see it and understand it this is why the ground of appeal advanced by the ELAAS representative was based on the existence of an implied term to cover that gap in the express contractual provisions.[9]The way in which the Employment Tribunal dealt with the terms of the contract is contained in essentially in paragraphs 27 and 28 of the Extended Reasons. They do not contain any detailed argument or reasoning on the breach of contract claim and the Employment Tribunal do not deal in those paragraphs with any claim based on an implied term. Paragraph 18 of the Extended Reasons seems to indicate that their view was that that argument was no longer being pursued.[10]The arguments of construction and as to the existence of an implied term are matters of law. Either as a matter of law there is a contractual entitlement or there is not. Thus, I think rightly, the only Meek (or Meek type) argument being advanced as to the reasoning in the Extended Reasons is a failure to consider the existence of an implied term, or to demonstrate that this was considered and why it was rejected.[11]We are satisfied that there are reasonably arguable points of law relating to the contractual entitlement to on-call payments and we will give permission for this appeal to proceed on the basis that the Employment Tribunal erred in law in concluding that there was no such contractual entitlement pursuant to either express or implied terms of the contract and in addition on the basis that they failed properly to consider the argument on implied term.[12]To effect that procedurally we will give leave to Mr Grant to amend the Notice of Appeal by striking out the existing grounds and including grounds to the effect that I have just described. As the Respondents are not formally represented before us today, although I think there are representatives of the Respondents in court, we expressly give them leave to apply to vary or discharge that amendment. On that occasion any argument as to the extent to which the amended grounds are covered by the existing grounds would or may arise. It is clear under the present grounds that Mr Grant is making a point that the Tribunal erred in law as to his contractual entitlement.[13]Further by way of directions, we will direct that the bundles as they were before the Employment Tribunal should be made available to this Tribunal. Additionally, we will direct that the Respondent to the appeal, the Local Authority, should produce a bundle containing all documents comprising (or evidencing) Mr Grant's contract of employment and a full copy of the Blue Book, we hope that that is a convenient way of ensuring that the full contractual documentation is before this Tribunal.[14]We give this case category B and a time estimate of one day.