MR ROBERT MCLEAN v APPELLANT & [2006] UKEAT 0019_06_1509

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0019_06_1509Case No Appeal No. UKEATS/0019/06Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
MR ROBERT MCLEANAPPELLANT &CLAIMANTRAINBOW HOMELOANS LTDRESPONDENT
Before
Lady SmithDate 15 September 2006
[1]APPEARANCES For the Appellant and Claimant No appearance or representation by or on behalf of the Appellant For the Respondents Mr T Muirhead, Employment Consultant Peninsula Business Services Ltd Delphian House Riverside New Bailey Street Manchester M3 5PB SUMMARY The claimant was dismissed and presented a claim for unfair dismissal. In his ET1, he asserted a belief that he had been dismissed because of his assertion of a statutory right. The form referred to the respondents having tried to have the claimant work in excess of 48 hours per week. At the time of his dismissal, he had been in the employment of the respondents for less than twelve months. At a pre–hearing review, the tribunal found that the claimant had declined to work more hours because he felt he was already working enough hours in that he was already working in excess of 48 hours per week. It held that, in those circumstances, it was not properly being contended that the dismissal was attributable to the assertion by him of a statutory right. That being so, since the claimant did not have the requisite year's service, the tribunal had no jurisdiction. The EAT upheld an appeal against that decision in respect that the tribunal had asked itself the wrong question; the claimant's case appeared to be that the respondents proposed to require him to comply with a requirement to work in excess of 48 hours per week, in contravention of the Working Time Regulations 1998. That being so, the one year qualification was disapplied by s.108(3)(dd) of the Employment Rights Act 1996 . THE HONOURABLE LADY SMITH Preliminaries The claimant sought to present a claim for unfair dismissal. The case proceeded to a pre–hearing review before an Employment Tribunal sitting at Glasgow, Chairman Mr D MacLeod, sitting alone. In a judgment registered on 19 December 2005, it was held that the claimant was not dismissed for asserting a statutory right and his claim was thus dismissed on the grounds that he had been employed for less than a year at the time of his dismissal and his only remedy, that of compensation for unfair dismissal, was not, it was said, available. Background[2]The essential facts were not, it seems, in dispute. Both parties were represented before the tribunal and the claimant was present but, as is recorded in the judgment, it was not felt necessary for evidence to be led. The claimant commenced employment with the respondents as a mortgage adviser on 14 April 2004 and his employment came to an end on 1 April 2005. The claimant asserted that prior to then, he had been regularly working for between 55and 60 hours per week. The respondents had then, according to him, asked him to work at weekends in addition to the hours he was already working. In their ET3, the respondents refer to the claimant having been advised of a proposal to vary his working hours (their case goes on to assert that the proposal would not have taken the claimant beyond 48 hours per week). The claimant declined to accede to what was proposed and he received a letter from the respondents dated 23 March 2005 which he interpreted as giving notice of the termination of his employment.[3]At paragraph 5 of their judgment, the tribunal records the following as regards the case advanced on behalf of the claimant:
"The position in this case was that the claimant had throughout his employment with the respondents worked for more than the minimum 48 hour period without demur. When on 18 March 2005 he was asked to carry out more work at week-ends, he declined to do so because he felt that he was already working enough hours and did not want to work at week-ends. He did not decline to do so because his employers were seeking to require him to work more than the 48 hour maximum provided for by Regulation 4 of the Working Time Regulations. Indeed no mention of the Working Time Regulations and their applicability to the claimant appears to have been made in the discussions between the claimant and his employer as at 18 March 2005 or thereafter. That this was the position, accepted by Mr Bailey on behalf of the applicant ….."
The Tribunal's Judgment[4]On the basis of the above narrative, the tribunal concluded that the claimant was not in fact contending that he had been dismissed for asserting a statutory right not to be required to work more than 48 hours in contravention of the Working Time Regulations 1998 ('WTR'). In those circumstances, his claim for unfair dismissal could, it was found go no further as it meant that his only available remedy was compensation for unfair dismissal and he did not have the requisite qualifying period of service (s.108(1) of the Employment Rights Act 1996 ). The Relevant Law[5]Section 94 of the Employment Rights Act 1996 confers the right not to be unfairly dismissed. Section 108(1) provides that section 94 does not apply if the claimant employee has not been continuously employed in the employment in question for at least a year.[6]Paragraph 4 of WTR provides that, unless the employer has first obtained the worker's agreement in writing, workers' working time shall not exceed an average of 48 hours for each seven day period.[7]Section 101A of the Employment Rights Act 1996 provides that an employee who is dismissed because he has refused to comply with a requirement that the employer proposed to impose in contravention of WTR shall be regarded as having been unfairly dismissed. The precise wording of the relevant provision requires to be considered for the purposes of the present case:
"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee- (a) refused (or proposed to refuse) to comply with a requirement which the employer proposed (or proposed to impose) in contravention of the Working Time Regulations 1998…"
[8]Section 108(3)(dd) of the Employment Rights Act 1996 disapplies the one year qualifying period provision in the event of a dismissal falling within s.101A. Thus, if an employee claims that he was dismissed because of his refusal to comply with a requirement that would have been in breach of WTR, he need not have been employed for at least one year to be able to claim that he has been unfairly dismissed. Such a dismissal is unfair and actionable even although an employee has been employed for less than a year. The same applies in the case of an employee who is dismissed because he has, in good faith, brought proceedings against his employer to enforce a statutory right or has alleged that his employer has infringed such a right ( Employment Rights Act 1996 s.104 and s.108(3)(g)). Submissions for Claimant on Appeal[9]A notice of appeal had been lodged for the claimant by his solicitor. A week prior to the appeal hearing, his solicitor withdrew from acting for him. The appeal was not subsequently withdrawn but the claimant did not appear at the hearing. Since, however, no indication had been given that he was not insisting on his appeal, since the issue that arose concerned the jurisdiction of the tribunal and since the respondents were represented at the appeal hearing, I decided that it was appropriate to proceed with the hearing.[10]The claimant's grounds of appeal included the following:
"2. Separatim , the Tribunal erred in law in dismissing the Application for want of jurisdiction. The Tribunal at paragraph 2 of the Judgement set as a term of reference whether the Appellant's application could otherwise fall within the jurisdiction of the Tribunal. The Tribunal answered the question at paragraph 6 by holding that, unless the Appellant could show that the dismissal was in relation to the assertion by him of a statutory right, there could be no jurisdiction. It is submitted that the Tribunal was wrong to so hold. Jurisdiction was in any event conferred upon the Tribunal in the present case by virtue of section 101A, in conjunction with section 108(3)(dd), of the Employment Rights Act 1996 (as amended). The appellant was entitled in terms thereof to present a claim for unfair dismissal without having attained one year's continuous service with the Respondents."
Submissions for Respondents[11]For the respondents, it was submitted that the matters raised in the notice of appeal were new and it was not open to the claimant to raise them on appeal. Reference was made, in support of that submission to the case of Kumchyk v Derby City Council [1978] IRLR 1116, in particular, the passage at p.1123 which indicates that whilst the relevant legislation does not exclude the raising of a new point of law on appeal, it would be unjust to do so in the absence of deception and that tribunals will not normally be expected to take a point not taken by the parties. He also referred to the case of Dimtsu v Westminster City Council [1991] IRLR 450 where it was held that the practice whereby tribunal Chairmen give assistance where it is needed in the formulation and presentation of cases is a matter for the judgment of the tribunal in each individual case and it is not an obligation.[12]Mr Muirhead also submitted that the claimant could not assert that he had been required to work in contravention of WTR at the time of his dismissal since he was, at the same time, asserting that he was already working in excess of 48 hours per week. His claim could only be relevant if he was asserting that he had been required to start working in excess of 48 hours per week. Further, the case that he was asserting a statutory right had only arisen post dismissal. He could not, therefore, claim that he was dismissed because of doing so. Discussion and Conclusions[13]The issue that arose in this case was a fundamental one as it concerned the jurisdiction of the tribunal. Hence, as I have indicated, my conclusion that I should consider the outstanding appeal even although the claimant did not appear nor was he represented at the hearing. Further, since the matter is one of jurisdiction, it does not seem to me that such authority as there is to the effect that new points of law ought not to be raised on appeal, is in point.[14]The issue addressed by the tribunal was that of whether or not the claimant was seeking to present a claim that his dismissal was attributable to an assertion by him of his statutory right not to be required to work more than 48 hours in a week.[15]That they formulated the issue in that way probably results from the wording used in the ET1 but I am satisfied that in so doing, the tribunal has led itself into error. It appears from a fair reading of the ET1 and the ET3 that what this case is about is that the respondent proposed to vary the claimant's working hours to include additional Saturday working and that the claimant's reaction to that was that he was not prepared to do so since he was already working long hours in excess of 48 hours per week, and that was quite enough. His solicitor confirmed that that was his position.[16]The question that then arose for the tribunal was whether or not the claimant required to have had a year's qualifying employment under s.108 of the Employment Rights Act 1996 or not, bearing in mind that the issue that arose between the parties inevitably involved a consideration of WTR. That required the tribunal to consider the part of s.108 that related to cases involving WTR. Section 101A is also relevant.[17]It is plain from the term of s.101A that the issue that ought to have been addressed was one of whether or not the claimant was asserting that he had been dismissed because he had refused to comply with a requirement which the respondents proposed to impose which, as a matter of fact, amounted to a requirement that would have contravened WTR. It is not necessary, for the purposes of s.101A and the consequential relief afforded by s.108 (3)(dd) that the dismissal in question occurs because the employee has positively asserted any right under the regulations (although he would, separately, have had good grounds for claiming disapplication of the one year requirement had he done so , given the terms of s.104 and 108(3)(g)). All that is required is that the employee has refused to accede to a requirement that would have breached the regulations and that the dismissal is because of that refusal. The fact that the requirement would have breached the regulations does not, however, have to be the reason for the employee having declined to comply.[18]The above are circumstances which the tribunal should have taken into account at the time of the pre-hearing review when considering whether or not it had jurisdiction.[19]I note that, separately, the tribunal appears to have approached matters on the basis that a claim for asserting a statutory right would not be a claim for compensation for unfair dismissal. That is not right. Dismissal of an employee because he asserts one of the statutory rights listed in s.104 or because he declines an employer's proposal to require him to comply with a requirement that would be in breach of WTR is automatically unfair and any compensatory award that follows will still be compensation for unfair dismissal. That the tribunal also made this mistake cannot help but give the impression that it has failed to understand the relevant parts of the statutory provisions.[20]In all the circumstances, I am satisfied that the appeal should be upheld, the judgment of the tribunal set aside and the case be remitted to the tribunal to proceed as accords. I will pronounce an order to that effect.