MR TREVOR WARD CLAMP v AERIAL SYSTEMS [2004] UKEAT 0266_04_0610

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0266_04_0610

Case No Appeal No. UKEAT/0266/04

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR TREVOR WARD CLAMPAPPELLANT

AERIAL SYSTEMSRESPONDENT

Before

Mr Justice Burton

Date 6 October 2004

[1]APPEARANCES For the Appellant MR MARCUS PILGERSTORFER (of Counsel) Instructed by: Messrs Thompsons Solicitors Price House 37 Stoney Street The Lace Market Nottingham NG1 1NF For the Respondent MR KOSTAS SAVVIDES (Representative) SUMMARY Working Time Regulations ET found that no detriment was suffered within s45A of ERA 1996 (resulting from A's withdrawal of his agreement to exceed the 48-hour limitation). As to the two detriments alleged(i) was a consequence of the necessary variation of A's contract, as found by the ET

(ii) was found by the ET not to be substantial or material ( Jiad v Byford ). No error of law. THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been an appeal by Mr Clamp, the Applicant below, against the unanimous decision of the Employment Tribunal at London (South) dismissing his claim pursuant to section 45A of the Employment Rights Act 1996 . Section 45A reads as follows:

"45A Working time cases (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker - (a) refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations 1998, (b) refused (or proposed to refuse) to forgo a right conferred on him by those Regulations."

At the same time the Tribunal made a finding that a claim for unauthorised deductions succeeded in part.

[2]The circumstances of the case were that the Appellant, Mr Clamp, had signed an agreement opting out of the Working Time Regulations 1998 , which limit the obligation of employees to working a 48-hour week, and consequently he was working a 60-hour week in his job as an efficient engineer on behalf of the Respondent Company, Aerial Systems. Indeed, he was, the Tribunal was told, one of the most valued of the employees of the Respondent and in addition to his basic salary he was earning commission. His job involved installing aerials and dishes and he travelled to and from appointments by van during the working day throughout Nottinghamshire and Derbyshire, and on occasion further afield, and at the end of the working day driving his van home.

[3]The Appellant decided in 2003 that he no longer wished to exclude the Working Time Regulations 1998 and to work in excess of the permitted hours. His motive for doing so was this: his wife unfortunately became ill in February 2003 and was diagnosed as suffering from rheumatoid arthritis, needing additional care and assistance. The Appellant therefore sought discussions with the Respondent with a view to reducing his working hours accordingly and withdrawing his agreement to exclude the Working Time Regulations 1998 .

[4]The consequence of the negotiations, as the Tribunal found, was as follows, at paragraph 10 (c) of the decision:

"The parties reached an agreement to vary the terms of the employment contract at the request of the Applicant with a view to reducing the Applicant's working hours to 48 per week excluding the hours travelling from and to his home. It was not a term of the contract as varied that the Applicant's basic salary be reduced pro rata to the reduction in hours from 60 to 48."

The latter sentence is significant. It must normally be the case, we assume, that where an employee is working longer hours he will be paid more money and that when he reduces his obligation to work a larger number of hours it will have a concomitant effect on his salary. For example, instead of working 60 hours at £100 per hour he might now be working 48 hours, still at £100 per hour, thus receiving only £4,800. That might be a consequence of the necessary variation of the contract resulting from an employee no longer agreeing to exclude the Working Time Regulations 1998 . This, however, did not occur on the facts of this case, and instead the parties agreed an alternative arrangement. Instead of the previous system whereby the 60 hours was not regulated, there was now, as the Tribunal found, a changed system whereby the 48 hours was reckoned, in accordance with the normal guidance from the DTI, from arrival at first job and until departure from last job in the day, i.e. excluding travelling time from and to home, and a tracker was fitted in the Appellant's vehicle in order to measure the hours.

[5]There is no doubt, and it is common ground, that so far as the Working Time Regulations 1998 are concerned the 48 hours, which is the maximum which an employee is entitled to work without excluding those Regulations, does not include travelling time, and thus the employer and employee in this case were compliant with the Regulations by reaching such an agreement.

[6]In addition, there was a further factor to the changed arrangement subsequent to June 2003. The Respondent treated the Appellant differently from other employees, it seems, in this way: by requiring that on those rare occasions when jobs were not allocated on the day before, or indeed earlier, such that it was uncertain where the Appellant would be starting his day, instead of his waiting at home he would be required to go to a designated spot on the nearest motorway slip road, where he would receive his instructions as to what job to go to. The advantage from the Respondent's point of view of course was that that meant that the Appellant was more speedily able to get to whatever job would be assigned than if he had still remained at home, and that meant that they were making use of the services of one of their best engineers more readily than if he had been at home. The disadvantage for the Appellant of course was that he was, on those rare occasions, and they were, and we are perfectly prepared to accept that they would be, rare, because normally an engineer would be assigned in advance, he would not have the advantage of remaining at home until called out, but would be waiting at the motorway.

[7]The financial consequence of this arrangement, however, as we have had explained to us today by Mr Savvides the Representative of the Respondent who appeared below, and who has with him today (although it does not appear as though he had them with him at the Tribunal) the tracker records, which indeed corroborate the finding of the Tribunal that it would indeed be rare that this exercise would occur in any event, is as follows. On the rare occasion when the Appellant would be required to wait at the motorway his time, that is, his 48 hours, would start to run on his arrival at the motorway. This would give him 3 consequential benefits. First, his waiting time would be covered by being part of his 48 hour day, thus giving an incentive from all points of view to reduce the waiting time, because it would be of no value to the employer who would be paying for it. Secondly, his travelling time from the motorway to the first job would count as part of his 48 hours, whereas if he had simply gone straight from home his 48 hours would not have triggered in until his arrival at the job. Thirdly, and really as a consequence of the first two advantages, because his 48 hours was thus starting earlier than it would otherwise do, it would enable him to finish his 48 hours earlier, and thus be home and back with his wife earlier than he might otherwise have been.

[8]We say that that is what we have had made clear to us today. Mr Savvides says that he made that clear to the Tribunal below. Mr Pilgerstorfer, who appeared at the second of the two days of hearing before the Tribunal, and certainly was present, as we understand it, for the oral evidence part of the hearing, does not recall that evidence being given, but is not in a position to say that it was not.

[9]That is the setting for our consideration of this appeal. The appeal is on the grounds that the Tribunal erred in failing to find that there was a detriment within section 45A of the Tribunal Decision. What the Tribunal found was that there were, or at any rate was that there was a sufficient of a belief that there might be, unlawful deductions, such as to make an order in accordance with paragraph 11 of the Tribunal Decision as follows:

"The Parties were not in a position to produce the necessary documentation to enable the Tribunal to quantify the amount of the unauthorised deductions. The Tribunal directed the Respondent by the 12 th December 2003 to produce documentary evidence that the payments made to the Applicant from the 13 th May to 26 th August 2003 broken down into their constituent elements and, if appropriate, by reference to hours recorded by the tracker. The parties will then liaise with a view to agreeing the amount of the unauthorised deductions."

[10]As we understand it, the case for the Respondent was that any payment of less than the £475 per week which it accepted was the sum payable even for a 48-hour week, as it had been for a 60-hour week before the variation, was explicable, by reference to the tracker, by showing that on calculation the Appellant had in fact worked less than a 48-hour week. The Respondent did not seek in any way to justify any suggestion that there had been deduction by virtue of the Appellant's not working a 60-hour week. That required calculation, and it may well be that there would have been an unlawful deduction as the Tribunal found. In the event it has not been necessary for that calculation to be carried out because, as Mr Savvides put it, in order to avoid any trouble, the full amount of money less than what was due for a 48-hour week, without seeking to calculate by reference to the tracker, has in fact been paid, subsequent to the Tribunal hearing. But that of course does not affect what we have now to consider.

[11]Mr Pilgerstorfer's submissions have involved a case that there were in fact two detriments to his client as a result of his client, perfectly properly, withdrawing his consent to excluding the Working Time Regulations 1998 , which the Tribunal failed to find and ought in law to have found.

[12]The first relates to his case that it was a detriment for his client, subsequent to the change, to have had his hours calculated on the basis of 48 hours excluding travelling time, whereas prior to the change his hours had been calculated as 60 hours without reference to travelling time.

[13]The Tribunal plainly did not consider that this was a detriment. It described it in paragraph 10 (c) (to which we have referred) as a variation of the contract; in essence, consequential upon the exclusion of the Working Time Regulations 1998 . Before the exclusion of the Working Time Regulations 1998 he was working an unlimited number of hours, so far as the Regulations were concerned, such hours as would be agreed between him and his employer; subsequent to the imposition of the Working Time Regulations 1998 , which became necessary by virtue of the removal of the exclusion, he was only permitted to work the maximum number of hours permitted by the Regulations, which would be 48 hours excluding travelling time.

[14]The Tribunal concluded that that was a variation and that it did not offend against section 45A of the Act. We agree. We conclude that there might, as Mr Pilgerstorfer himself has submitted, be circumstances of detriment arising, involving some act of the employer resulting from the withdrawal of the exclusion. However, just as it would not, in our judgment, be a detriment but a consequence if the salary were reduced as a result - not the case here - so it would be a consequence and not a detriment, or at any rate the Tribunal were entitled so to find in this case, if instead of the number of hours previously worked the number of hours now worked were the maximum permitted under the Regulations, but for the same salary; and that was the terms of the bargain that was reached by the parties in paragraph 10 (c). If there were any disadvantage to the Applicant so resulting, it was balanced by the corresponding advantage of the employer paying the same salary for lesser hours.

[15]In our judgment, although perhaps the Tribunal did not set out that reasoning as fully as it might otherwise have done, its thought processes are clear from the Decision and we agree with the result of its conclusions.

[16]The second matter which Mr Pilgerstorfer submits amounts to a detriment relates to the waiting on the motorway.

(f) was as follows:

"The Applicant further asserted that he was required to wait on call occasionally on a motorway slip road whereas beforehand he waited at home. Although this may have happened on occasions it was not considered by the Tribunal to amount to a sufficient detriment."

[17]Mr Pilgerstorfer has referred us to Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

and to the repetition of the House of Lords' conclusions in that case in Bahl v The Law Society

[2004] EWCA Civ 1070

. It is no longer in any doubt, as a result of those decisions, that in order to establish a detriment there is no need for an Applicant to establish any physical or economic consequence. It is certainly also right that the detriment is to be looked at from the point of view of the employee. But it is also not to be lost sight of that there must be firm evidence of the existence of an actual detriment.

[18]Peter Gibson LJ in Jiad v Byford

[2003] IRLR 232

approved the conclusion of the Employment Appeal Tribunal in Lord Chancellor v Coker

[2001] IRLR 116

, which was otherwise in substance disapproved in Jiad by the Court of Appeal, that a trivial disadvantage would not suffice, and that there was a requirement that the detriment must be material and substantial.

[19]It is plain to us that the Tribunal was concluding in this case, having heard the evidence, when it said that "it was not considered by the Tribunal to amount to a sufficient detriment", that the detriment constituted by the requirement to wait on the motorway did not amount to a sufficient detriment, that is, a detriment which was material and substantial, and sufficiently so as to result in the operation of section 45A.

[20]We are unable to resolve the dispute between Mr Savvides and Mr Pilgerstorfer as to precisely what was said, although given the forcefulness with which Mr Savvides has made his submission to us today, and the fact that Mr Pilgerstorfer is only able to say that he has no recall as to the position, it may well be that the evidence was given. It certainly appears to us that that is the case, given the operation of the tracker in the vehicle; and this Tribunal heard the facts, and we are not able to say that there were not sufficient facts before them on which the Tribunal could reach the conclusion it did, although of course it would inevitably be an irritation and, perhaps, given the physical condition of his wife, a disappointment to the Appellant to have on rare occasions to wait at the motorway, and the fact that it was only on rare occasions of course does not itself prevent there being a detriment, because the very requirement that it should occur could itself be a detriment.

[21]But the Tribunal will have had in mind what the consequence to the employee would be of his waiting on the motorway, and if the Tribunal did not have it in mind we certainly have it in mind; namely that in fact, if anything, there was an advantage to the Appellant as a result of this requirement, in the two or three respects which we indicated earlier in this judgment; certainly a financial advantage and possibly also such an advantage as to eliminate, even in the employee's mind, the irritation and disappointment that he otherwise would have felt.

[22]We believe that the Tribunal was entitled to reach the conclusion that it did: that there was, taking into account all the evidence, no sufficient detriment to the Appellant by virtue of the requirement made by the Respondent. If we were in doubt as to whether that evidence was before the Tribunal we are satisfied that it would be before the Tribunal if this matter were remitted, and we are therefore of the view that, even if we did remit this matter to the Tribunal to consider whether the requirement to wait on the motorway, in the circumstances which we have described, amounted to a material and substantial detriment, we conclude that it would be inevitable that the Tribunal would reach the same conclusion again.

[23]In those circumstances we dismiss this appeal. We feel, however, that the appeal has had some purpose, because the Appellant can now be utterly clear, which perhaps he was not clear before, that if there were this rare occasion of his being required to be on the motorway, he is entitled to be paid according to the tracker, from the time of arrival at the motorway slip road, and thus that his 48 hours will trigger as from that time and not, as would otherwise be the case in accordance with the varied agreement, from his time of arrival at the first job.