MR R GRANT v KENT COUNTY COUNCIL [2003] UKEAT 1019_02_2509

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1019_02_2509Case No Appeal No. EAT/1019/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R GRANTAPPELLANTKENT COUNTY COUNCILRESPONDENT
Before
His Honour Judge J BurkeDate 25 September 2003
[1]APPEARANCES For the Appellant MR DONALD BROATCH (of Counsel) For the Respondent MR MARK SHULMAN (Solicitor) Instructed by: Messrs Rollingsons Solicitors Lonsdale Chambers 27 Chancery Lane London WC2A 7NG HIS HONOUR JUDGE J BURKE QC The History Leading to this Appeal Mr Grant, the Appellant, was employed by the Social Services Department of Kent County Council ("the Council") from July 1993 until August 1998 as Manager of the County Out of Hours Service in the Medway and Swale areas. After his employment ended he presented to the Employment Tribunal an Originating Application in which he claimed that he had been unfairly dismissed and that the Council had acted in breach of contract in a number of respects. One of his breach of contract claims was that, throughout his employment, he had, in addition to his contractual 37 hours per week, spent many hours in each week on-call, for which additional duties he had not been paid.[2]His complaints were initially heard by the Employment Tribunal sitting at Ashford and chaired by Mr G W Davis, on various dates in 1999 and 2000. One reason why the hearing took as long as it did was that, in the course of it, Mr Grant unsuccessfully appealed to the Employment Appeal Tribunal against a ruling or rulings of the Tribunal. Eventually, by a decision sent to the parties on 10 November 2000, the Tribunal dismissed all of Mr Grant's claims.[3]Mr Grant put in a Notice of Appeal which covered, we believe, all of his claims; but at the Preliminary Hearing of that appeal the Employment Appeal Tribunal permitted him to proceed to a full hearing on one issue only, namely whether there was an express or an implied term of Mr Grant's contract of employment which entitled him to payment, in addition to his salary, for on-call duties. As is apparent from the judgment, the full hearing of his appeal on 18 February 2002 before the Employment Appeal Tribunal, presided over by Holland J, Counsel then appearing for Mr Grant virtually abandoned reliance on an express term and put the principle weight of his argument behind the submission that Mr Grant was entitled to be paid for on-call duties on the basis of an implied term. It is abundantly clear that the Employment Appeal Tribunal on that occasion thought little of that argument; indeed in its judgment at paragraph 16 it said in terms: 16 "Had the matter depended solely upon the contention that, absent an express term, there was entitlement as for a breach of implied term, then this appeal would have failed."[4]However, in the course of argument, one of the lay members of the Employment Appeal Tribunal drew attention to paragraph 11 (b) of section 3 of "the Blue Book" which contains standard terms and conditions, collectively negotiated which were incorporated into the contracts of employment of the Council's Social Services employees, including Mr Grant. The Employment Appeal Tribunal concluded that that paragraph appeared to apply to Mr Grant and might amount to an express provision that he was entitled to be paid while on-call; but because the Tribunal had not found the necessary facts, the Employment Appeal Tribunal could not decide that Mr Grant was or was not so entitled. Accordingly, the Employment Appeal Tribunal allowed Mr Grant's appeal and remitted the case to the Tribunal for a re-hearing of Mr Grant's claim to payment for on-call duties, on the basis of either an express or an implied term.[5]The remitted hearing took place, again before the Tribunal sitting at Ashford, this time chaired by Mrs V Cooney, on 29 & 30 July 2002. By their decision, sent to the parties with Extended Reasons on 7 August 2002, the Tribunal dismissed Mr Grant's claim, concluding that there was neither an express nor an implied contractual term pursuant to which Mr Grant's on-call duties were to be the subject of remuneration over and above his salary. They also dismissed any claim based on a quantum meruit .[6]Mr Grant now appeals against the second Tribunal's decision. He was represented by Mr Broatch of Counsel who had not appeared before the Tribunal. The Council were represented by Mr Shulman who did appear before the Tribunal. The Facts[7]Mr Grant was originally appointed to the post, in the Council's Social Services Department, of Out of Hours Group Leader. His appointment letter said:
"Your normal hours of work are flexible and you will be expected to work 'in and out' of office hours, to ensure effective liaison and service management. Hours of work are based on the standard working week but because of the hours to be covered, you will find that some weeks you would work more than others. Your principal duties and responsibilities will be as set out in the attached job description."
His job description said:
"The Locality Manager will need to work partly during office hours to make effective liaison within the Department, and partly out of hours to manage the service effectively, monitoring the operational bases."
The salary in this post was £28,813 per annum. Mr Grant was placed on Grade G.[8]After a re-organisation, Mr Grant received a further letter of appointment in which his job title was specified as "Locality Manager with the Out of Hours Service in the Social Services Department, at ARC in the Medway/Swale Area." The letter set out that his terms and conditions were those of the Kent Scheme of Conditions of Service ("the Blue Book") and that "Your normal hours of work will be 37 hours a week. The precise details will be arranged with you by your Line Manager". The letter said:
"As a term of your employment, you may be required to undertake such other duties and/or hours of work as may reasonably be required of you commensurate with your grade (general level of responsibility within the Council), at your initial place of work or based at any other of the Council's establishments…"
The salary for that post was £27,585; Mr Grant was placed on Grade H – as he was at the end of his employment. In the Council's structure, grades from G upwards were management grades.[9]The Tribunal found that Mr Grant was told at interview that he would have to be very flexible with his hours and would have to be on-call out of normal hours. He was, however, led to believe that there would be a rota of managers who would be on-call. When on-call he had to carry a pager and/or mobile phone with him, for reasons which are obvious. In paragraph 18 of the decision the Tribunal found that Mr Grant realised from the start that working "a lot" of his time out of hours was part of his managerial responsibility and therefore covered by his salary.[10]Between September 1993 and 1997, the Tribunal found, Mr Grant worked a twelve hour day in the office and was heavily involved in providing the on-call service when not in the office. It is not necessary for us to go into great detail. There were nine on-call sessions per week, seven evenings and two day-time weekend sessions; for the first three months of his employment Mr Grant was the only manager on-call and was, therefore, on-call when not in the office, for the rest of the week, day and night. Thereafter for a few months a number of managers undertook some of the on-call sessions; from April 1994 the on-call sessions were shared with two other managers; from April 1996 one other manager shared the on-call duties with Mr Grant.[11]The Tribunal found, at paragraph 17 of their decision, that Mr Grant was able to justify working the whole of his 37 weekly core hours in the office, that is to say his duties were such that there were at least 37 hours of work per week for him to do in the office. The Tribunal further found that the Council could not reasonably consider that on-call duties or any part of such duties could be included within the 37-hour working week. They also found, however, that Mr Grant was the manager of the service and that it was up to him to manage that service so as not to be the sole or main provider of the on-call cover. He was not assisted in this by his own managers, however, and was in a very difficult position because the on-call service was essential, but he was not being given the staff with which to provide it.[12]The Tribunal described how, in late 1993 or 1994 Mr Grant had sought payment for on-call duties from his Line Manager and was assured that the matter would be sorted out later and how, from 1997, Mr Grant protested about performing on-call duties without payment. It appears that employees at lower grades did receive payment for on-call duties but managers did not.[13]The Tribunal were not, and we have not been, called upon to consider the amounts which Mr Grant might have recovered if his claim had succeeded; he claims to have worked many hundred on-call sessions during the relevant period, in respect of each of which Mr Grant claims to have been entitled to £33.52. There are manifestly very substantial sums at stake; we were told that the value of Mr Grant's claim is between £27,500 and £30,000. The Tribunal's Decision and the Nature of the Appeal[14]The Tribunal considered Mr Grant's claim on three fronts, namely express term, implied term and quantum meruit . The last of these three fronts was raised only in final speeches, apparently on the initiative of the Chairman. The second was, according to Mr Shulman, not raised at all. At paragraph 19 the Tribunal rejected the submission that Mr Grant could base his claim to payment for on-call duties on a quantum meruit ; they accepted the submission made on behalf of the Council that the Tribunal had no jurisdiction under the Employment Tribunal Extension of Jurisdiction (England & Wales) Order 1994 to consider a claim other than a claim for breach of contract of employment, or of a contract connected with employment, or a claim for a sum due under such a contract and that, unless there was an express or implied term of Mr Grant's contract of employment which entitled him to the monies claimed, his claim must fail.[15]The Tribunal next considered section 4, paragraph 1 (d) of the Blue Book. That paragraph provides as follows: 1 (d) "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." This was the express provision originally relied upon by Mr Grant. However, as clearly appears from the EAT's judgment upon Mr Grant's appeal against the dismissal of his claim for payment for on-call duties by the original Tribunal, it was (as it still is) accepted that Mr Grant had no entitlement to overtime payments; and it was also accepted before the first Tribunal that there were no other payments or arrangements which had been the subject of local determination which gave rise to such an entitlement; see paragraph 9 of the Employment Appeal Tribunal's judgment of 18 February 2002. It was for that reason that Counsel for Mr Grant at the hearing before the Employment Appeal Tribunal which gave rise to that judgment appears to have relied principally on an implied term, at least until a different provision of the Blue Book was brought to his attention.[16]The second Tribunal ruled that they were not bound by the earlier concession on behalf of Mr Grant that there was no relevant local determination as to pay or arrangements and held that they would consider whether Mr Grant could succeed on the basis of section 4, paragraph 1 (d) in the light of the evidence; see paragraph 2 of the second Tribunal's decision. They concluded, however, in paragraph 22 that paragraph 4 (1) (d), being part of a paragraph in the Blue Book entitled " Office Hours " related to work done during office hours only and did not cover on-call or standby duties (those being regarded as interchangeable expressions) for which express provision was made for payment in section 3 of the Blue Book. They further decided, at paragraph 23 of their decision, that if their primary construction of section 4, paragraph 1 (4) was wrong, nevertheless it gave rise to no freestanding right and only gave any entitlement to remuneration in respect of on-call duties to Mr Grant if he could bring himself within the provisions which specifically related to such duties in section 3, paragraph 11 of the Blue Book.[17]The Tribunal then considered section 3, paragraph 11 (b) of the Blue Book which, insofar as it is relevant, reads as follows: 11 (b) " Standby Duty Allowance Social Workers (i) Where an individual social worker whose post is not graded above Grade F and who does not live at his/her place of work, is required to remain at home on standby duty after normal working hours and at weekends to deal with emergencies as they arise, he/she shall be paid on the following sessional basis to cover the duties and responsibilities involved…" (b) Other Classes (i) Employees who are required to undertake standby and call-out duties are paid a standard rate of allowance per session…" The Tribunal held, at paragraph 26 of their decision, that Mr Grant's commitment to providing on-call cover was not a contractual one and, at paragraphs 25 and 28, that he was not "required" to undertake on-call duties. "Required", they held, must mean required either by the contract itself or by somebody within the Council whose reasonable instructions Mr Grant was contractually bound to obey; but Mr Grant was not required to be on-call under the terms of his contract of employment and there appears to have been no suggestion of any such instruction, Mr Grant being himself the manager of the relevant service.[18]Thus the claim based on an express term of the contract of employment was rejected.[19]The Tribunal then considered whether Mr Grant could succeed on the basis of an implied term in his contract of employment. At paragraphs 28 and 31 they rejected any reliance on an implied term. They held that Mr Grant was a manager with a reasonable salary and that that was sufficient to preclude an implied term under the officious bystander test. There was no other basis upon which a term could be implied.[20]Accordingly, while the Tribunal at paragraph 30 expressed the view that the existence of a moral obligation towards Mr Grant could not be denied and that the Council did not discharge their obligation of extracting Mr Grant from a difficult situation, failed to appreciate the difficult position in which he had been placed and were guilty of inordinate delay in getting to grips with the problem, Mr Grant's claim failed.[21]Before us Mr Broatch, on behalf of Mr Grant, put Mr Grant's case forward on each of the three fronts upon which the Tribunal had decided against Mr Grant, i.e. express term, implied term and quantum meruit . Mr Shulman, on behalf of the Council, argued in favour of the Tribunal's decisions. We are indebted to both for their resourceful and careful arguments. Quantum Meruit[22]Mr Shulman submitted that the quantum meruit claim was bound to fail for two reasons. The first was that the Tribunal had no power to consider that claim because it was not part of the remission to the Tribunal by the Employment Appeal Tribunal and was, therefore, not before the Tribunal for decision. The second was that the Tribunal had been correct in law in refusing to entertain the quantum meruit claim because they had no jurisdiction to do so.[23]In support of the first submission, Mr Shulman relied upon the decision of the Court of Appeal in Aparau v Iceland Frozen Foods [2000] ICR 341 . In that case, Mrs Aparau claimed that she had been unfairly constructively dismissed after leaving her employment because she was instructed to transfer to a different branch of the employer's retail business. The Tribunal dismissed her claim on the basis that the employers were entitled to order her to transfer under a mobility clause. The Employment Appeal Tribunal held that the Tribunal had misdirected themselves in reaching that conclusion and remitted the case to the Tribunal for a rehearing of the issue as to whether the mobility clause had been incorporated into Mrs Aparau's contract of employment.[24]Before the re-hearing the employers were allowed to amend their Notice of Appearance to put forward pleas, which had not previously been put forward, that, if there had been a constructive dismissal, it was a fair dismissal for some other substantial reason. The second Tribunal then found that there had been a breakdown in relationships between Mrs Aparau and her store manager, that in the circumstances the dismissal was for some other substantial reason and that the dismissal was fair. The Employment Appeal Tribunal dismissed Mrs Aparau's appeal against the decision of the second Tribunal, no point being taken as to whether the Tribunal on the second occasion could lawfully have entered upon the issues of the reason for or the fairness of the dismissal. However, the point was taken before the Court of Appeal that the Tribunal could not lawfully have entered upon those issues because the case had been remitted to them to determine solely one wholly different issue, namely whether the employer's action in ordering Mrs Aparau to transfer was in breach of contract.[25]The Court of Appeal held:(i) that the jurisdiction of the Tribunal was derived wholly from statute and that the lack of objection on the part of the employee to the course taken by the Tribunal could not confer jurisdiction on the Tribunal which did not otherwise exist;(ii) that on a remission the Tribunal had no power to reconsider any matter other than that or those specifically remitted to it; and(iii) that in all other respects the Tribunal had exhausted their jurisdiction.[26]Moore-Bick J, with whom Mance LJ and Peter Gibson LJ expressly agreed, held at paragraph 25: 25 "If, as occurred in the present case, the matter is remitted for the Tribunal to consider certain specific issues, it will have no jurisdiction to hear or determine matters outside the scope of those issues and it must follow that it has no power to allow one party to amend its case to raise issues which were not previously before it. In the present case it is clear from the passages in the judgment of the Employment Appeal Tribunal to which I have already referred that remission was ordered in very limited terms simply to enable the Employment Tribunal to reconsider whether Iceland's new terms of employment had been accepted by Mrs Aparau. That being so, the Tribunal did not by virtue of the remission have jurisdiction to reopen the case generally, nor did it have jurisdiction to hear or determine any argument on the part of Iceland relating to the fairness of any dismissal. Although Mr Glennie sought to persuade us to the contrary, I for my part am quite satisfied that that was not an issue which had previously been raised in the proceedings and it was certainly not within the scope of the remission."[27]In this case the Employment Appeal Tribunal, at paragraph 13 of their judgment said: 13 "The matter must be remitted to the Employment Tribunal, preferably differently-constituted, for a re-hearing of this head of complaint." and continued, at paragraph 14: 14 The precise ambit of that hearing must be for the Employment Tribunal…" At paragraphs 16 and 17 the Tribunal said: 16 "Second, this Decision of this Tribunal is directed at a possibility that cannot presently be excluded, that the Appellant's claim can succeed by reference to the express terms of his contract. Had the matter depended solely upon the contention that, absent an express term, there was entitlement as for a breach of implied term, then this appeal would have failed… 17 However, given that full fact finding is contemplated as a result of our remission to the Employment Tribunal, we would not exclude the existence of an implied term from that remission."[28]In our judgment, while it is entirely plain that at the time of the remission the Employment Appeal Tribunal did not have in mind a claim based on quantum meruit , the terms of the Employment Appeal Tribunal's judgment were wide enough to permit Mr Grant to rely on any legal argument in support of his claim for payment in respect of on-call duties; what was remitted to the Tribunal for re-hearing was "this head of complaint", i.e. Mr Grant's complaint that he was entitled to such payment. We are of course bound by the Court of Appeal's decision in Aparau , with which we would in any event respectfully agree; but in this case, in contrast to Aparau , the Tribunal had jurisdiction to consider the quantum meruit argument because the terms of the remission were not so closely defined as to exclude but were defined in such a way as, albeit unknowingly, to include it.[29]However, it does not follow from the proposition that the terms of the remission were sufficiently wide to enable the Tribunal to consider the quantum meruit point on the remission that it was open to the Tribunal to decide upon it in favour of Mr Grant. The Employment Tribunal Extension of Jurisdiction (England & Wales) Order 1994 ("the 1994 Order") provides by paragraph 3(a) as follows: 3 "Proceedings may be brought before an employment tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if - (a) the claim is one to which section 131 (2) of the 1978 Act applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine." Section 131 (2) of the 1978 Act has been replaced by section 3 (2) of the Employment Tribunal's Act 1996 , which provides: 3 (2) "Subject to subsection (3), this section applies to- (a) a claim for damages for breach of a contract of employment or other contract connected with employment,(b) a claim for a sum due under such a contract, and(c) a claim for the recovery of a sum in pursuance of any enactment relating to the terms or performance of such a contract"[30]The Council's submission is that a claim on a quantum meruit is not a claim for damages for breach of a contract of employment or other contract connected with employment, or a claim for a sum due under such a contract. Mr Broatch rightly accepts that there is no claim for damages; but he submits that the quantum meruit claim is a claim for money due under a contract of employment or in respect of a contract connected with employment. He relies upon Way v Latilla [1937] 3 AER 759, a decision of the House of Lords in which the Appellant agreed with the Respondent that he would carry out various services for the Respondent in connection with West African gold mining concessions. The contractual arrangements between the parties were incomplete; however, the House of Lords concluded that there was a contract of employment between the parties, although remuneration payable thereunder had not been agreed. Lord Atkin, with whom the remaining members of the House agreed, said at page 763F-H:
"But, while there is, therefore, no concluded contract as to remuneration, it is plain that there existed between the parties a contract of employment under which Mr Way was engaged to do work for Mr Latilla in circumstances which clearly indicated that the work was not to be gratuitous. Mr Way, therefore, is entitled to a reasonable remuneration on the implied contract to pay him quantum meruit ."
[31]Mr Broatch also relied on Miles v Wakefield Metropolitan District Council [1987] ICR 368 in which the employee, a Superintendent Registrar of births, deaths and marriages, took industrial action by refusing to carry out weddings on Saturdays. The Council, his employers, instructed him not to work at all on Saturdays if he was not prepared to undertake his full range of duties and refused to pay him for Saturdays, making pro rata deductions from his pay. His claim for the sums deducted failed at first instance, but succeeded in the Court of Appeal, whose decision was reversed by the House of Lords. Mr Broatch relied on the following passage from the speech of Lord Brightman at page 383E-384A:
"…what is the position if the employee offers partial performance and the employer, usually of necessity, accepts such partial performance, the deficient work being understood by the employer and intended by the employee to fall short of the contractual requirements and being accepted by the employer as such? There are, as it seems to me, two possible answers. One possible answer is that the employer must pay the full wage but may recover by action or counterclaim or set off damages for breach of contract. The other possible answer is that the employee is only entitled to so much remuneration as represents the value of the work he has done, i.e. quantum meruit. My noble and learned friend Lord Templeman prefers the latter solution, and so do I. My reason is this…If, in breach of his contract, an employee works with the object of harming his employer, he can hardly claim that he is working under his contract and is therefore entitled to his contractual wages. But nevertheless in the case supposed the employee has provided some services, albeit less than the contract required, and the employer has received those (non-contractual) services; therefore the employer must clearly pay something – not the contractual wages because the contractual work has deliberately not been performed. What can he recover? Surely the value of the services which he gave and which the employer received, i.e. quantum meruit."
[32]Way v Latilla is, as we see it, an illustration of the operation in practice of a proposition of law which is, in our judgment, unchallengeable, namely that where services are provided pursuant to a contract of employment and are to be paid for but the rate of remuneration is not agreed, the employee is entitled to be remunerated at a reasonable rate decided upon by the court. Such a claim to reasonable remuneration, decided upon by the court, is described as a quantum meruit claim. Lord Brightman in Miles was referring to the same type of quantum meruit claim, as arising in a somewhat different fact situation in which the employee could not claim for his contractual wages but had carried out some services under his contract of employment for which he was entitled to be paid in accordance with the value of the work he had done. In the present case the fact situation is wholly different; while there is no doubt that Mr Grant was an employee of the Council, there is an issue between him and the Council as to whether he was entitled to be paid anything at all for on-call duties beyond his agreed salary; it is and has always been the Council's case that Mr Grant's salary embraced and remunerated him for all the services he provided. If Mr Grant has a right to additional remuneration for on-call duties, then we do not understand there to be any real dispute about the rate or at least the rate payable under section 3, paragraph 11 (b) (i) of the Blue Book; if any such dispute arose in the context of an established right to remuneration under the contract of employment, that dispute might give rise to a quantification exercise properly described as an assessment on a quantum meruit basis; but it is not possible to decide on a quantum meruit whether, under the contract of employment, there was or was not a right to such additional remuneration; whether such a right existed or not must depend upon judicial investigation of and, if necessary, construction of the terms of the contract, express or implied and not upon a quantum meruit .[33]Mr Broatch submitted that Miles was an example of a further type of quantum meruit claim, where the employee enters into a separate and subsidiary contract with the employer to carry out further services but without agreeing what remuneration should be payable under such contract; such a contract, he submitted, would be one which was connected with employment and a claim for payment thereunder would be a claim for a sum due under such a contract. However, it is clear that the Tribunal was not asked to determine and did not determine whether there was any such subsidiary contract; and in our judgment Miles is not an example of such a contract. In any event Lord Bridge, Lord Brandon and Lord Oliver of Aylmerton doubted whether the quantum meruit approach espoused by Lord Brightman was correct. This appeal cannot succeed on the basis of some unspecified subsidiary contract, as to which the Tribunal have made no findings, no doubt because the argument before them was focused on the issue as to whether the terms of the contract of employment did or did not provide for extra remuneration for on-call duties.[34]There is, of course, a different potential type of quantum meruit claim, namely a quasi-contractual or restitutionary claim, the scope of which is juridically controversial; but it is not relevant to the present situation. It appears to us that it would be very difficult to bring such a claim within the 1994 Order; but we need not consider it further because it was not relied upon by Mr Broatch.[35]If this was a case in which the right to payment for services under a contract of employment was not in dispute and the Court or Tribunal was asked to decide on a reasonable rate of remuneration, there would, in our view, be no difficulty in regarding the claim as one for a sum due under a contract of employment or, if a subsidiary contract was relied upon, a contract connected with employment; but this was not such a claim. In our judgment the Tribunal were entirely correct in their decision that the quantum meruit claim could not succeed and that, unless there was an express or implied term of Mr Grant's contract of employment which entitled him to the monies claimed, his claim must fail. Implied Term[36]Mr Broatch provided us, both in his Skeleton Argument and in his oral submissions, with a detailed analysis of the various ways in which a term may be implied into an employment contract. It is necessary, however, as we see it, first to identify with clarity what term is sought to be implied. It is not identified in the Notice of Appeal or in the Skeleton Argument; but we take it to be an implied term that Mr Grant should be reasonably remunerated for out of office work or on-call duties in the absence of an express term to that effect.[37]The difficulty which that submission faces is perhaps immediately obvious. Mr Grant's primary case before the Tribunal was that he was entitled to be paid for such services pursuant to the express terms of the Blue Book; the Council's case was that his salary was intended to cover and covered remuneration for the whole of the services which Mr Grant provided. That issue could only be resolved by identifying and construing, insofar as necessary, the express terms of the contract of employment. The division of the Employment Appeal Tribunal which remitted Mr Grant's claim to the second Tribunal plainly had problems in seeing how the implied term argued for could arise. If Mr Grant's case on express term was correct, no implied term was necessary; if the Council's case was correct, Mr Grant was being remunerated for on-call duties and there could be no entitlement to any further payment. As the Employment Appeal Tribunal indicated at paragraph 16 of its judgment, the officious bystander might regard it as morally unsatisfactory that the Council should accept so much extra work from Mr Grant without paying extra for it; but such a feeling could not be the basis for an implied term.[38]For those reasons alone, it appears to us that the case insofar as it was advanced on the basis of an implied term was bound to fail. However, the Tribunal did expressly consider, in paragraph 28, whether the implied term argued for could be implied from custom and practice and concluded on the facts that it could not. We cannot see any basis on which the conclusion of the Tribunal set out in paragraph 28 can be successfully attacked.[39]We accept from Mr Shulman that other bases for an implied term were not specifically argued before the Tribunal at the hearing; whether the Tribunal in paragraph 31 of their decision in saying "there is no other basis upon which a term can be implied" meant "we know of no other basis in law for such implication" or "we have considered all other bases but they do not operate in this case" probably does not matter in the circumstances. In any event, we are wholly unpersuaded by Mr Broatch that the term we have identified could be implied on any of the various bases to which he referred us.[40]We ought to refer specifically to Mr Broatch's argument as to the implication of the term for which he contended on the basis of business efficacy. He relied upon the decision of the Court of Appeal in Courtaulds Northern Spinning Ltd v Sibson and Transport & General Workers Union [1988] ICR 451 in which Slade LJ, at page 460G-H, said:
"The court merely has to be satisfied that the implied term is one which the parties would probably have agreed if they were being reasonable…"
It is however important to see that extract from Slade LJ's judgment in its proper context. The issue was whether, where the contract of employment was silent as to whether the employer had any right to transfer the employee from one depot to another, a term that they could or could not do so could be implied. The Court of Appeal, reversing the decision of the Tribunal and the Employment Appeal Tribunal, approached the issue on the basis that some term as to whether or not the employer was entitled to transfer the employee had to be implied; they cited with implicit approval the judgment of the Employment Appeal Tribunal in Jones v Associated Tunnelling Co. Ltd. [1981] IRLR 477 in which Browne-Wilkinson P said that:
"The starting point must be that a contract of employment cannot simply be silent on the place of work; if there is no express term, there must be either some rule of law that in all contracts of employment the employer is (or alternatively is not) entitled to transfer the employee from his original place of work or some term regulating the matter must be implied into each contract."
Slade LJ was not, in the passage to which Mr Broatch referred us, setting out a proposition that a term could be implied from business efficacy where it was reasonable to do so; he was indicating that, where it is necessary to imply a term for reasons of business efficacy, the term to be implied should be one which the parties would probably have agreed if they were being reasonable.[41]A term cannot be implied into a contract, under the heading of business efficacy or otherwise, because it would have been reasonable for there to be such a term in the contract. The sentence in the judgment of Slade LJ on which Mr Broatch relied is not supportive of an argument to the contrary. We do not see how in the context of this case it could be said – and we did not understand Mr Broatch to say – that the term for which he contended was a necessary term.[42]Although Mr Broatch referred to other bases for the implication of that term, we do not regard it as necessary or helpful to go through them in this judgment. We are entirely satisfied that the Tribunal reached the correct view on this part of Mr Grant's case. There was no basis on which a term which would have provided Mr Grant with an entitlement to further payment in respect of on-call duties could have been implied. Either he was entitled to such payment under an express term of his contract of employment or his salary included payment for such duties. We will therefore turn to consider the appeal against the Tribunal's conclusions on Mr Grant's primary argument. Express Terms[43]Before the second Tribunal and before us, Mr Grant relied both on section 4, paragraph 1 (d) of the terms set out in the Blue Book – upon which he had failed before the first Tribunal – and upon section 3, paragraph 11 (a) (i) of the Blue Book which had been identified as an express term on which Mr Grant might be able to establish his entitlement by the Employment Appeal Tribunal, as we have earlier described.[44]We have set out above the basis on which the second Tribunal rejected Mr Grant's claim insofar as it relied on section 4, paragraph 1 (d). Mr Broatch did not put section 4, paragraph 1 (d) at the forefront of his case, at least in oral argument. In his Skeleton Argument he submitted that the heading " Office Hours " to that paragraph was misleading because the paragraph encompassed provision for flexible hours; but in our judgment the Tribunal were wholly correct in their construction of that paragraph. The heading of that paragraph indicates that what follows relates to office hours; and the individual sub-paragraphs at paragraph 1 of section 4 all relate to office hours. The reference to flexible hours is under a separate heading referring to flexible hours in paragraph 2 of section 4. In our judgment section 4, paragraph 1 (d) did not apply to the on-call duties in respect of which Mr Grant sought remuneration.[45]Section 3, paragraph 11 of the Blue Book requires more sustained analysis. It is headed " Standby Duty Allowance ". It has always been accepted that there is no difference between standby duty and on-call duty; and therefore prima facie on-call duty falls within its compass. Paragraph 11(a) applies to individual social workers not graded above Grade F, in other words, those who are not in management grades; and it is common ground that that sub-paragraph could not apply to Mr Grant. Sub-paragraph (b), however, is headed " Other Classes ". While in his Skeleton Argument Mr Shulman seemed to suggest that Mr Grant would not be covered by paragraph 11(b) (i), he did not seek to sustain that suggestion before us; and there is no restriction, in our judgment, to the scope of 11 (b) (i), save that it does not apply to employees who are covered by 11 (a) (i). Nor can it sensibly be said that Mr Grant was not undertaking standby and call-out duties, the nature of which for the purposes of 11 (b) (i) has to be taken from 11 (a) (i). The central issue on this part of the appeal is whether the Tribunal correctly concluded that Mr Grant was not required to undertake such duties.[46]Mr Broatch submitted that the Tribunal had erred in restricting the word "required" to meaning required either by the contract itself or, in accordance with the terms of the contract, by somebody within the organisation whose reasonable instructions Mr Grant was contractually bound to obey. He submitted that Mr Grant was required within the proper meaning of paragraph 11 (b) (i) of section 3 of the Blue Book, if he was carrying out work which it was necessary for him to do, or which he was expected by his employers to do. He further submitted that if requirement bore the meaning for which he contended, while whether it was necessary for Mr Grant to carry out the on-call duties or expected that he would carry them out, was a question of fact, the findings of the Tribunal were sufficient to establish such necessity or expectation. Mr Shulman argued, as no doubt he had done before the Tribunal, that "required" had the meaning given to it by the Tribunal, that Mr Grant was the manager of the service and had to organise and arrange the provision of the service and that it was up to him to arrange it in such a way that on-call duties were not such as regularly to extend his normal working week. He relied on the findings of the Tribunal, to which we have already referred, as to the expectations of the parties from the beginning of the contract of employment that Mr Grant would be required to put in some extra work within the ordinary scope of his duties and without remuneration.[47]Mr Broatch relied on Henaghan v Rederiet Forangirene [1936] 2 AER 1426, a decision of Lewis J on a claim for damages for personal injuries. The claim was based on a breach of statutory duty which only arose if the relevant part of the ship on which the accident took place was one to which "persons employed may be required to proceed in the course of their employment". It was held that the word "required" did not mean "ordered"; it was enough if the relevant employees were in the habit in the course of their duties of going to the relevant area. We are doubtful whether that first instance decision on the construction of the Docks Regulations 1934 sheds any real light on the issue which we have to resolve. However, we take the view that the Tribunal was in error in restricting the meaning of "required" in the relevant provision of the Blue Book as they did. We have no doubt that there would have been a requirement if the obligation to carry out the on-call duties had been spelt out in the contract of employment or if Mr Grant had been ordered by his superior or superiors to carry them out; but, in addition, in our judgment, if it was necessary for Mr Grant to carry out the on-call duties in order that they should be properly performed, i.e. so that there would always be someone available on-call at evenings and at weekends, or if it was expected by the Council that (at least in the absence of anybody else) Mr Grant would perform such duties, he was in a very real sense required to carry them out; and such a requirement would have been sufficient to bring him within the terms of paragraph 11 (b) (i) of section 3 of the Blue Book.[48]In this respect alone we regard the Tribunal's decision as wrong in law; they confined the meaning of the word "required" too closely; there did not need to be an express requirement either by instruction or in the contract of employment; the circumstances in which he was working could, in our judgment, themselves provide the requirement.[49]Was Mr Grant required to carry out these duties in the enlarged sense in which we have defined that word? The parties disagreed. Both, however, agreed that whether he was or was not so required was a question of fact. We have carefully considered whether the findings of fact expressed by the Tribunal lead us so clearly to a decision on this issue in favour of one party or another that we could safely say that no other solution was possible or would be open to the Tribunal on a remission. We have, with considerable reluctance, come to the conclusion that the position is not clear enough to enable us to determine how, on the findings of fact so far made, the Tribunal would resolve the issue as to whether Mr Grant was required to carry out the on-call duties.[50]Accordingly, we have come to the conclusion that there must in this case be a yet further remission to the Tribunal. The remission will be a very limited remission. The remission is limited to determination by the Tribunal as to whether Mr Grant was required to carry out the on-call duties in respect of which he claims additional remuneration on the basis of the definition of "required" which we have set out above. The remission will be to the same Tribunal. There is no need for a remission to a new Tribunal. It will be for the Tribunal to decide whether there needs to be any further evidence; on the face of it it would seem unlikely that there would be any such need – but that is a matter for the Tribunal. There will, of course, have to be further submissions to the Tribunal, directed to the single point remitted.[51]We do not wish to be thought in what we have said above to be undermining in any way the general concept that a manager must manage his department and ensure that the work of his department is fully and properly carried out, without looking for extra remuneration, whatever be the extent of the extra hours which he has put in in order to do so; but in this case we have been called upon to construe a specific provision of the contract of employment, which countenances additional payment in certain circumstances to a class of employees into which Mr Grant falls; the sole question which remains to be decided is whether those circumstances existed in Mr Grant's case. Conclusion[52]For the reasons set out above, the appeal is allowed to the extent that Mr Grant's claim for additional payments for on-call duties is remitted to the same Tribunal for determination of the single point which we have identified above.