MCLEOD & OTHERS (FORMERLY KNOWN BY THE TITLE HENRY & OTHERS) v LONDON GENERAL TRANSPORT SERVICES LTD [2004] UKEAT 0973_03_2604

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0973_03_2604Case No Appeal No. UKEAT/0973/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MCLEOD & OTHERS (FORMERLY KNOWN BY THE TITLE HENRY & OTHERS)APPELLANTLONDON GENERAL TRANSPORT SERVICES LTDRESPONDENT
Before
His Honour Judge Peter Clark Mr R Lyons Miss D WhittinghamDate 26 April 2004
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED SUMMARY Collectively agreed terms and conditions of employment - incorporation by custom and practice - acquiescence - unauthorised deductions from wages. HIS HONOUR JUDGE PETER CLARK The present Appellants were, at all relevant times, employed by the Respondent or its predecessor at their Stockwell garage. In 1994 negotiations took place for a Management Employment Buy Out (MEBO) of the undertaking in which they worked. A condition of that MEBO was that the existing Terms and Conditions of employment of these and other employees, totalling some 1500 in all, be varied in a way which was unfavourable to the staff. At that time the Trade Union, to which these Appellants do not belong, the Transport and General Workers Union was recognised by the employer for Collective Bargaining purposes. On 12 August 1994 the Respondent and the Transport and General Workers Union entered into a Framework Agreement containing revised Terms and Conditions of employment. Those new Terms and Conditions were implemented by the Respondent for Stockwell garage staff on 5 November 1994. Some of the employees, including these Appellants were unhappy with the new terms. Petitions, objecting to the terms, signed by some employees numbering about 130, were presented to management on 7 November and 8 December 1994. Nevertheless, they continued to work for the Respondent under the new terms. It was not until November 1996 that the first of the Appellants presented complaints of unlawful deductions from wages to the London (South) Employment Tribunal.[2]The claims, together with claims by staff at the Respondent's Putney garage with which we are not concerned, were resisted and came before an Employment Tribunal chaired by Mr R Peters sitting on 21-23 October 1997. The issue was whether the terms of the Framework Agreement were incorporated into the individual contracts of employment.[3]On that issue the Stockwell employees succeeded. The Employment Tribunal held:(1) that the onus of proving a contractual variation lay on the Respondent.(2) that they had not established that by custom and practice the terms of the Framework Agreement had been incorporated into the individual Contracts of Employment.(3) the Stockwell Applicants had protested about the new terms and could not be said to have acquiesced in the variation to their Terms and Conditions of employment.[4]Against that decision, promulgated with Extended Reasons on 5 November 1997, the Respondent appealed and the Applicants cross-appealed.[5]In the appeal a division presided over by Lindsay P held in a reserved judgment handed down on 30 November 2000 that the Employment Tribunal had fallen into error on all 3 counts, that is burden of proof, custom and practice and acquiescence. The EAT allowed the Respondent's appeal, dismissed the cross-appeal and directed (Judgment para 47) that the case be remitted for rehearing to the same Employment Tribunal. The parties were permitted to adduce fresh evidence at the remitted hearing.[6]Against that decision the Applicants, then 63 Stockwell employees, appealed to the Court of Appeal. In the leading judgment of the Court delivered on 21 March 2002 Pill LJ, with whom Longmore LJ and Sir Martin Nouse agreed, agreed with the EAT in the result, but not entirely in the reasoning. His Lordship held:(1) that the Employment Tribunal correctly directed themselves as to the burden of proving a contractual variation; it lay on the employer on the balance of probabilities.(2) that the Employment Tribunal asked itself the wrong question in respect of custom and practice. On the facts of this case the narrow question which arose for determination was this; does the admitted and accepted practice that an agreement made between the (recognised) union and the employer is binding on individual employees operate when a ballot has not been held? (judgment para 31). The issue before the Court of Appeal was this; the Applicants contended that a ballot of relevant employees was necessary; the Respondent that it was enough that the union had given an assurance that a majority of the staff consented to the agreement.(3) as to acquiescence, Pill LJ opined, without deciding the point, that on the facts of the case he would find it extremely difficult to conclude other than that the employees had accepted the revised terms (judgment para 23).[7]In these circumstances the case returned to the Peters Employment Tribunal on 22-24 September 2003. By a decision with Extended Reasons promulgated on 30 September the Employment Tribunal, this time, dismissed the complaints. They heard further evidence, in accordance with the Employment Appeal Tribunal direction, including the evidence of Pat Mahon, who was at the relevant time in 1994 a District Officer of T&GWU. He said that T&GWU members were organised on a garage by garage basis, each garage being a separate branch of the union. It was traditional that any negotiated solution was taken back to the members at a garage meeting for approval; approval was generally sought by a show of hands.[8]At paragraph 15 of their reasons the Employment Tribunal said this:
"15 The Tribunal is satisfied that there was a custom and practice of incorporation of collective agreements into the individual contracts of employment of the employees. That custom and practice and was irrespective of how agreement of the membership was ascertained. It was for each garage (union branch) to decide how to hold a vote, ie whether by ballot or show of hands, and the decision was notified by the district officer who then confirmed the outcome of the vote on the negotiated terms to the Respondent."
And at paragraph 18:
"18. In any event the Tribunal would have found the Applicants acquiesced by waiting for some two years before commencing Employment Tribunal proceedings."
In these circumstances the Employment Tribunal dismissed the complaints and further ordered costs against the Applicants.[9]Against the Employment Tribunal's 2003 decision this appeal is brought by the present Appellants. The case comes before us for Preliminary Hearing. Mr Neckles, General Secretary of the Appellants' trade union, PTSC, has submitted written representations on their behalf in support of the grounds of appeal. The Respondent also does not appear today, but in accordance with the current practice we have taken into account written representations submitted by Mr Maccabe of Counsel, who appeared on behalf of the Respondent before Lindsay P, the Court of Appeal and the Peters Employment Tribunal in 2003.[10]Turning then to the grounds of appeal, they are organised under the following heads: (1) the extent of the remission Mr Neckles refers to the Court of Appeal decision in Aparu v Ireland Frozen Foods Plc (No 2) [2000] IRLR 196 , in which the Court held that where the EAT remitted a case of constructive unfair dismissal on the issue as to whether a mobility clause had been expressly incorporated into the Applicants' contract of employment and the employer then conceded that there had been no such incorporation so that the employee was constructively dismissed, it was not then open to the Employment Tribunal on remission to consider whether that dismissal was fair, even although no objection was taken by the Applicant to that course before the Employment Tribunal and the objection was again not taken before a division of the Employment Appeal Tribunal on which I sat.[11]Here, Mr Neckles appears to be submitting, at paragraph 2 of his skeleton argument, that the specific issue remitted to Mr Peter's Employment Tribunal was first, whether there was a custom and practice of the Respondent negotiating with the T&GWU, as the recognised union; if so, was there a collective agreement reached and if so whether such agreement was incorporated into the individual contracts of employment of the Appellants.[12]He submits that the Employment Tribunal strayed outside the issues remitted in 2 respects; first, whether a specific tradition of negotiations between the Appellants and Respondent was so notorious or certain as to amount to a custom and practice and secondly, if so, whether there was a practice of holding ballots by a show of hands. As to the latter issue, the Employment Tribunal was wrong, it is said, to determine that issue without first affording the Appellants an opportunity to adduce evidence with a view to disproving that allegation. Further, that the Employment was wrong in law in finding that there was a practice of holding ballots by a show of hands and that they failed to provide adequate reasons for that finding.[13]Taking these matters together, it is important that we remind ourselves of the specific issue remitted to the Employment Tribunal by the Court of Appeal on this part of the case. We refer again to paragraph 31 of the judgment of Pill LJ. Given the concession on behalf of the Appellants (para 30) that the custom and practice was that an agreement made by T&GWU would bind all relevant employees, the narrow question was whether a ballot, as opposed to a show of hands, was necessary. That being the question posed by the Court of Appeal it is not open to the Appellants to complain that they were not given an opportunity to adduce evidence on the issue when the Court of Appeal had directed that that was the issue at the remitted hearing. Thus, far from exceeding the extent of the remission, the Employment Tribunal answered that very question at paragraph 15 of their reasons. There was evidence to support that finding from Mr Mahon. Indeed, it is apparent from Mr Neckles' complaint that no contrary evidence was adduced on behalf of the Appellants. The Employment Tribunal was not required to provide any further reasons; they decided the point on undisputed evidence. Accordingly this part of the appeal fails and, it must follow, the substantive appeal. The Respondent made out the variation by custom and practice which defeated these unlawful deductions claims. (2) Acquiescence[14]Strictly, the Employment Tribunal's finding on acquiescence is moot in circumstances where we have upheld their finding on custom and practice. However, for completeness we should deal with this part of the appeal, to be found at paragraph 5 of the grounds of appeal. We do not accept that the Court of Appeal was disentitled from considering, as did the Employment Appeal Tribunal, whether the Employment Tribunal in its 1997 decision had misdirected itself in law as to the test for acquiescence. Having found an error of law, it was entitled to uphold the Employment Appeal Tribunal's decision to remit that question to the Employment Tribunal. On remission, the Employment Tribunal looked at the facts and concluded, taking into account the delay in presenting the complaints, that if there had been a unilateral variation, it had been affirmed by the Appellants. We are not persuaded that the Employment Tribunal felt obliged to reach that alternative conclusion in the light of the remarks of Pill LJ at paragraph 23 of his judgment. That is clear from the Chairman's comments on Mr Neckles' affidavit dated 8 March 2004. Taking into account the views of the Court of Appeal does not demonstrate bias or the appearance of bias, as Mr Neckles seems to suggest in his affidavit sworn on 23 January 2004 in support of ground 5 of the Appellants' grounds of appeal. (3) Costs[15]Finally, there is a challenge to the Employment Tribunal's award of costs. The Employment Tribunal dealt with that application by the Respondent at paragraph 21 of their reasons. They concluded that following the Court of Appeal decision the claims by the Appellant had no reasonable prospect of success, that is, they were misconceived within the meaning of rule 14 of the Employment Tribunal Rules of Procedure 2001. Costs were limited to the period 1 April 2002 (shortly after the Court of Appeal decision) until 24 September 2003.[16]In our judgment the Employment Tribunal was entitled to reach that conclusion. The narrow issue on custom and practice was clearly identified by Pill LJ at paragraph 31 of his judgment. The Appellants adduced no further evidence (as they were entitled to do under the Employment Appeal Tribunal's order; see the judgment of Lindsay P paragraph 47) to challenge the proposition that agreement may be obtained by a show of hands; the Respondent adduced evidence in support of the proposition from Mr Mahon. That led to an inevitable determination in favour of the Respondent. The claims, in these circumstances, were misconceived.[17]It follows that we shall dismiss this appeal.