MR G DARNTON v BOURNEMOUTH UNIVERSITY [2009] UKEAT 0058_09_1612

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0058_09_1612Case No Appeal No. UKEAT/0058/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR G DARNTONAPPELLANTBOURNEMOUTH UNIVERSITYRESPONDENT
Before
Mr Justice UnderhillDate 16 December 2009
[1]APPEARANCES For the Appellant MR G DARNTON (The Appellant in Person) For the Respondent MR OLIVER SEGAL (Of Counsel) Instructed by: Messrs Martineau No. 1 Colmore Square Birmingham B4 6AA SUMMARY CENTRAL ARBITRATION COMMITTEE The obligations of an employer under reg. 14 (1) of the Information and Consultation of Employees Regulations 2004 are not required to be performed within the period of three months referred to at reg. 14 (3) but only as soon as reasonably practicable. THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT) This is an appeal from a decision of the Central Arbitration Committee ("CAC"), reported at [2009] IRLR 4. The decision in question was made by the CAC in the exercise of its powers under reg. 19 (4) of the Information and Consultation of Employees Regulations 2004 ; and an appeal lies to this Tribunal under reg. 35 (6). The Appellant appeared before us in person. The Respondent was represented by Mr Oliver Segal of counsel. Both made their submissions attractively and clearly.[2]It will be convenient to start by saying something about the Regulations. They were made by the Secretary of State for Trade and Industry, with effect from 6 April 2005, in order to implement EU Directive 2002/14/EC . Their purpose is to provide for the establishment of arrangements under which employees can be informed and consulted by their employers about matters of mutual concern. In bare outline – we shall have to return to some specific provisions in due course – the procedure for which they provide can be summarised as follows. The process is triggered by an "employee request", which has to come from at least 10% of the workforce: this is the subject of reg. 7. There then follow two stages, both of which are prescribed in different parts of reg. 14. The first stage consists of, essentially, the election or appointment of representatives who can enter into negotiations with the employer for the establishment of agreed information and consultation arrangements: the responsibility for arranging that election or appointment is placed on the employer. The stage is complete when the employer invites the "negotiating representatives" to enter into negotiations. The second stage consists of the actual negotiation of the arrangements. (The position is more complicated where there are already information and consultation arrangements in place: in that case, if the request comes from fewer than 40% of the workforce the employer must, by reg. 8, hold a ballot to seek the endorsement of the employees for the employee request.) If the process fails at either stage, reg. 18 provides for "standard information and consultation provisions" – i.e. default arrangements – to come into effect. The CAC is given power to resolve disputes on a number of specified matters.[3]The issue in the present case concerns the timetable governing the two stages provided for by reg. 14, and in particular the first stage. The relevant provisions are as follows.[4]Reg. 7 . Reg. 7 (1) provides:
"On receipt of a valid employee request, the employer shall, subject to paragraphs (8) and (9), initiate negotiations by taking the steps set out in regulation 14 (1)."
Paras. (8) and (9) there referred to cover, respectively, the situations where an employer holds a ballot because there are pre-existing agreements and where a dispute has been referred to the CAC about the validity of the employee request. In each case there is a moratorium until the outcome of the ballot or the CAC's decision, as the case may be, is known.[5]Reg. 14 . The relevant provisions are as follows: "(1) In order to initiate negotiations to reach an agreement under these Regulations the employer must as soon as reasonably practicable -–(a) make arrangements, satisfying the requirements of paragraph (2), for the employees of the undertaking to elect or appoint negotiating representatives; and thereafter(b) inform the employees in writing of the identity of the negotiating representatives; and(c) invite the negotiating representatives to enter into negotiations to reach a negotiated agreement." (2) … (3) The negotiations referred to in paragraph (1)(c) shall last for a period not exceeding six months commencing at the end of the period of three months beginning with the date on which the valid employee request was made or the valid employer notification was issued; but the following periods shall not count towards the three month period - … . We need not set out the remainder of para. (3), which is complicated, since it is concerned with how the period is to be extended in cases where there has been a complaint to the CAC, and contains nothing of relevance for present purposes. We have omitted para. (2) because it sets out the detailed requirements for the election or appointment of negotiating representatives, which, again, are not material for present purposes. There are further paragraphs, (4)-(7), but they too contain nothing relevant.[6]Reg. 18 . Reg. 18 (1) provides:
"Subject to paragraph (2) – (a) where the employer is under a duty, following the making of a valid employee request or issue of a valid employer notification, to initiate negotiations in accordance with regulation 14 but does not do so, the standard information and consultation provisions shall apply from the date – (i) which is six months from the date on which the valid employee request was made or the valid employer notification was issued, or (ii) information and consultation representatives are elected under regulation 19, whichever is the sooner; and (b) if the parties do not reach a negotiated agreement within the time limit referred to in regulation 14(3) (or that period as extended by agreement under paragraph (5) of that regulation) the standard information and consultation provisions shall apply from the date – (i) which is six months from the date on which that time limit expires; or (ii) information and consultation representatives are elected under regulation 19, whichever is the sooner."
We need not set out paras. (2) and (3), which preserve the rights of the employer and the negotiating representatives to agree an alternative to the default procedures. It is evident, and common ground, that the purpose and effect of reg. 18 (1) is to provide for the default arrangements to apply in the event of a failure either the first or the second stage. Thus, head (a) applies where the employer fails to complete the first stage by "initiating negotiations", i.e. by issuing an invitation under reg. 14 (1) (c); and head (b) applies where negotiations begin but do not conclude within the specified time limit. An employer who does not, in effect, implement the default arrangements within the times specified in reg. 18 (1) is liable to a penalty under procedures prescribed by reg. 22.[7]The facts giving rise to the issue in the present case are as follows. The employer is the University of Bournemouth. A valid employee request under the Regulations was made to it. There was a dispute before the CAC as to the date of that request, but it decided that the date was 8 November 2007, and there is no appeal against that decision. The prime mover of the request was the Appellant, who is an employee of the University. In accordance with reg. 7 (1), the making of the request triggered the first stage of the process described above. A ballot for the appointment of negotiating representatives was held in mid-March 2008. On 26 March the University informed the workforce of the identity of the negotiating representatives, as required by reg. 14 (1) (b). In the course of April and May various other steps were taken, including the provision by ACAS of training for the negotiating representatives and discussion of certain IT issues. The first negotiating meeting took place on 5 June 2008, and there were further meetings up to and including September 2008. There does not appear to have been any specific document identified to the CAC as the invitation to the representatives to enter into negotiations, in accordance with reg. 14 (1) (c). Thus, although it is clear that such an invitation must have occurred in some form or another (the Regulations do not require it to have been in writing), its date is unclear, and the CAC made no finding: it could have been at any date between 26 March and early June.[8]In separate proceedings before the CAC the Appellant has established that the negotiations exceeded the maximum period specified by reg. 14 (3). The period of "three plus six months" there specified ran from 8 November 2007 and thus expired on 7 August 2008, at which date the negotiations were still not concluded. Accordingly reg. 18 (1) (b) kicked in, and since the University did not implement the default arrangements within the time limit there specified it is potentially liable to a penalty under reg. 22.[9]The present issue, however, concerns a different point. It was the Appellant's case before the CAC that the University was in breach of its obligations under reg. 14 (1). On the face of it, that simply involves deciding whether the University had taken the various steps there specified "as soon as reasonably practicable". The CAC considered that question and held that it had done so (see paras. 52 and 61 of its decision); and there is now no appeal against that aspect of its reasoning. But the Appellant contended that, in addition to the requirement that the employer should take the steps in question as soon as reasonably practicable, it was also and in any event obliged to complete the first stage – that is, by issuing the invitation required by reg. 14 (1) (c) in no more than three months. If that is correct, it is common ground that it did not do so: even if the invitation is to be taken to have occurred at the earliest possible date, i.e. 26 March, that is still some four and a half months from the date of the employee request. The effect of a decision in the Appellant's favour would have been that the default established by reference to reg. 18 (1) (b) would be substituted by a more substantial default by reference to reg. 18 (1) (a), which might have an impact on the level of penalty imposed.[10]The CAC did not accept the Appellant's case on that point. It held that there was nothing in the drafting of reg. 14 (1) to give rise to the obligation asserted: the University's only obligation was to complete the first stage as soon as reasonably practicable. It accordingly dismissed the complaint.[11]The Appellant appealed to this Tribunal on various grounds, but at a preliminary hearing he was only allowed to proceed on two grounds; and he has since abandoned one of those two. We are now only concerned with the single question whether reg. 14 on its true construction requires the employer to complete the first stage – that is, to issue the invitation to the negotiating representatives - within three months of the employee request.[12]The starting-point must be the actual language of reg. 14 (1). In our view this is unambiguous. The only provision as to the time by which the employer must comply with the specified obligations is the requirement that it do so as soon as reasonably practicable. There is no mention of any period of three months. What, however, the Appellant says is that para. (1) must be read with para. (3). He says that the effect of the first sentence of para. (3) is that the invitation issued pursuant to para. 1 (c) must be issued no later than three months from the date of the employee request; and that that accordingly provides for a maximum period of three months for the first stage. If it were otherwise, he says, the reference in para. (3) to a period of three months is inexplicable. He says that that is the correct reading as a matter of ordinary English, but he also says (a) that it is to be preferred because it provides for a more effective machinery; and (b) that it accords with the Minister's intention to be gleaned from the travaux préparatoires and from the guidance issued by the Department of Trade and Industry ("the DTI").[13]We do not accept those arguments. We take first the question of the natural meaning of the words. In the first place, while we of course accept that in principle reg. 14 must be construed as a whole, it would nevertheless be very odd for the apparently clear and unqualified words of para. (1) to be modified by the words of a different paragraph. If the Secretary of State had meant "as soon as reasonably practicable, but in any event within three months of a valid employee request", that would have been very easy to say: it is a drafting formula which is very commonly employed. (Indeed it was used in an earlier draft of this provision: see para. 17 below.) To adapt the apophthegm put by A. P. Herbert into the mouth of Lord Mildew:
"If the Secretary of State does not mean what she says, she must say so" ( R v Minister for Drains , in Uncommon Law , case 48). But we do not in any case accept that the opening part of para. (3) can properly be read in the way urged by the Appellant. The word "commencing" does not qualify "negotiations" but, rather, the phrase "a period not exceeding six months"
. Its function in the sentence is simply to define the starting-point of the period of six months by the end of which the negotiations should conclude. The whole provision is not concerned with when the negotiations should start but with when they should finish . That is so as a matter of language, but it also reflects the substance of the matter. The second stage will have been formally initiated by the employer's invitation under para. (1) (c), and there is therefore no need in para. (3) to specify a start-date: what matters is to specify an end-date.[14]Mr Segal submitted that that reading of reg. 14 is supported by the drafting of reg. 18 (1). He pointed out that while head (b), which is concerned with a failure at the second stage, refers explicitly to the failure to reach agreement "within the time limit referred to in regulation 14 (3)", head (a) refers only to a failure "to initiate negotiations in accordance with regulation 14": that suggests, he submitted, that the draftsman recognised that the second stage was subject to a fixed time limit but the first was not. While we understand this submission, we base our conclusion on the wording of reg. 14 itself.[15]We accept the Appellant's point that the draftsman's choice to define the maximum period for negotiation in the convoluted way that he does – i.e. as a period of six months following a period of three months starting from the date of the employee request – is only readily explicable on the basis that the earlier of those periods reflects his expectation of the maximum length of what we have called the first stage; and indeed that is consistent with what appears from the travaux préparatoires to which we refer below. But an expectation is not a prescription; and the fact that that is detectably the expectation does not justify reading the words of reg. 14 (1) in a way which they will not naturally bear. The result is, perhaps, clumsy (a clumsiness which may reflect changes during the drafting history – again, see below); but it is not unworkable. It will no doubt be unusual for it not to be reasonably practicable to complete the first stage within three months; but in cases where that has occurred the employer will simply have a rather shorter period than six months in which to conclude the negotiations (a consideration which may encourage him to get a move on at the first stage). The Appellant submitted that an obligation to do something "as soon as reasonably practicable" was inherently uncertain and makes it difficult for employees to know when there has been a failure to comply with reg. 14 (1) such as to attract the operation of reg. 18 (1) (a). That uncertainty could encourage employers to drag their feet, in the knowledge that they were unlikely to be proceeded against for breach. The Appellant reminded us of the obligation imposed on member states by art. 8 of the Directive to "ensure that adequate administrative or judicial procedures are available to enable the obligations arising from this Directive to be enforced". This point is a reasonable one as far as it goes, but, again, it does not justify giving reg. 14 a meaning which we do not believe it can bear. Obligations couched in language of this kind may be more difficult to enforce, but they are certainly not unenforceable. Courts and tribunals are very familiar with judging questions of reasonable practicability, and in a case where an employer was plainly dragging his feet there would be no problem in showing a breach. Provisions in similar terms are not uncommon. Mr Segal reminded us, by way of example, that the obligation of an employer under reg. 13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 to inform employees' representatives about an impending transfer is defined as arising "long enough before [the transfer] to enable [him] to consult [them]".[16]As mentioned above, the Appellant sought to rely on evidence of the Secretary of State's intention which he said was apparent from two sources – first, the documents produced by the DTI as part of the consultation preceding the making of the Regulations and, secondly, the guidance document issued by the DTI. We will consider those in turn.[17]So far as the consultation materials are concerned, these consist of the DTI consultation document preceding the introduction of the Regulations, attaching a draft, together with the report on the responses to the consultation. In the original draft, which was differently structured from the Regulations as finally made, it was proposed that the first stage would last no more than a month: what was then draft reg. 7 (1) (a) provided that the employer should, in effect, initiate the second stage "as soon as reasonably practicable and, in any case, within one month of a valid employee request being made". The report on the responses recorded that many consultees believed that that period was too short, and the DTI commented that "the time period has therefore been increased to three months (regulation 14 (3))". We assume, without deciding, that all of these materials are admissible as aids to construction; but they do not seem to us to give a clear picture. The Appellant relied on them for the clear confirmation – though, as we have said, this can be inferred from the Regulations themselves – that the Secretary of State expected the first stage to last no more than three months. But Mr Segal submitted that it is at least equally significant that the draftsman omitted in the final version of the Regulations to employ the formula adopted in the draft of "as soon as reasonably practicable and in any case within [one/three month(s)] of a valid employee request ". That omission must, he suggested, be deliberate and must reflect an intention that, while the three-month period should be a norm for the completion of the first stage, with that norm being incorporated in the calculation of the maximum period for the two stages taken together, it should not represent an absolute deadline. As so often, it is hard to be sure what is deliberate and what may be simply inadvertent; but in our judgment the effect of Mr Segal's point is that it certainly cannot be said that these materials give a conclusive indication of what was intended. In fact, the exercise is quite a good illustration of how a foray into the legislative history can sometimes complicate the task of construction without any corresponding advantage in certainty.[18]The DTI guidance document to which the Appellant refers was issued in January 2006. Para. 31 states that:
"Following an employee request … the employer should initiate negotiations with representatives of the employees as soon as reasonably practicable, and within three months at the latest."
It could be said that the "should" which appears in the passage is intended by the authors to reflect the expectation or norm to which we have referred above rather than a statement of a legal obligation. But if it is indeed intended to state a legal obligation, in our view it is wrong. It may – though this has not been definitively established – reflect what the Secretary of State intended; but it is not what she enacted. The guidance has no special status. This would not be the first time that departmental guidance documents of this character have been held to mis-state the law.[19]Accordingly this appeal must be dismissed.