Ross v Eddie Stobart Ltd (Working Time Regulations : no sub-topic) [2011] UKEAT 0085_10_1605

EAT
Ross v Eddie Stobart Ltd (Working Time Regulations : no sub-topic)
[2011] UKEAT 0085_10_1605 · 2011-05-16
[1]This is an appeal by Mr Peter Ross (“the Claimant”) against a judgment of the Employment Tribunal sitting in Liverpool (Employment Judge Robinson presiding) dated 30 November 2009. By its judgment the Tribunal dismissed all the claims which he made against his former employer Eddie Stobart Ltd (“the Respondent”).[2]As we shall see, the Claimant worked for the Respondent as an HGV driver from 30 June 2008 until his dismissal on 16 April 2009. As an HGV driver he was a “mobile worker” to whom the Road Transport (Working Time) Regulations 2005 (“the RTR”) applied. The Tribunal did not refer to the RTR in their reasons, but it was common ground before us that they were applicable. We shall return to them later.[3]At the time of his dismissal he had less than one year of service. He therefore did not have the requisite period of service for claiming unfair dismissal unless he could bring himself within certain specific provisions of Part X of the Employment Rights Act 1996 .[4]The Claimant represented himself at the Tribunal. The Tribunal identified the following provisions of Part X as potentially applicable to a complaint of unfair dismissal where no qualifying period was required:(a) section 100 (dismissal for health and safety reasons)(b) section 103A (dismissal for what is commonly known as “whistleblowing”)(c) section 101A (dismissal for reasons relating to working time) Additionally the Claimant made complaints concerning weekly and night time working and rest breaks.[5]These were the complaints which the Tribunal dismissed. The background facts[6]The Claimant started work with effect from 30 June 2008. He worked out of the Respondent’s Appleton depot, near Warrington. He passed his probationary period of 13 weeks successfully.[7]The Respondent’s case was that it began to receive complaints about the Claimant from managers and customers. The complaints fell into two main categories.[8]Firstly, there were complaints that the Claimant took too much time in various respects – especially when getting his vehicle ready to leave the depot. It was alleged that on one occasion he said that he was doing so in order to wait for a canteen to open. These complaints relate to dates between January and March 2009. Secondly, there were complaints over an alleged poor and obstructive attitude. The earliest allegation of this kind related to 27 January.[9]At the end of March the Claimant was required to stay in the depot for 3 days and not go out on the road because he had worked too many hours over a 17 week period. These days were 31 March, 1 April and 2 April.[10]Although the Tribunal does not cite it, it is important to set out a passage from the witness statement of the Respondent’s manager, Mr Simpson, who dealt with this matter. He said:
“We conduct continual reviews of driver’s hours to ensure that we are in full compliance with the regulations on driver’s hours. The ultimate responsibility under the regulations do rest with the employee although we do all we can to monitor the hours worked and to assist all our drivers in complying with the regulations. All hours worked for all drivers are entered into a spreadsheet which provides a week on week average over 17 weeks of hours worked. From time to time this process will identify a driver who has in fact exceeded his average working hours. This was the case for Mr Ross at the end of March 2009 which resulted in him having to spend 3 days or so on “period of availability” within the depot; in effect this meant that he did no work during that time.”
[11]There was, as the Tribunal put it, “some discussion” between the Claimant and Mr Simpson as to whether, during these 3 days, he could be required to remain on site. Mr Simpson required him to do so. The Claimant asked Mr Simpson if he could telephone the Vehicle and Operator Services Agency (VOSA), an executive agency responsible for enforcement of the RTR. The Claimant did so. VOSA telephoned the Respondent about the issue. The Tribunal made no clear findings as to the outcome of this matter.[12]The Claimant, under protest, remained on site during those 3 days. He was paid for the days. It was alleged that on one occasion during the 3 days he used abusive language about the Respondent’s planners, who were responsible for allotting and managing the drivers’ itinerary.[13]On 9 April the Claimant was required to attend training on the question of EU hours and working time. The trainers found that he was very knowledgeable on these issues. But they described his attitude as one of sarcasm and arrogance.[14]That very same day Mr Simpson wrote a letter to the Claimant setting out various complaints against him (including a complaint from the trainers) and calling him to a disciplinary hearing. At the hearing on 16 April he was dismissed. The Road Transport (Working Time) Regulations 2005[15]The Tribunal did not grapple with the RTR. In its reasons the Tribunal said that it was a “grey area” whether the Claimant could be required to stay in the depot during a “period of availability”. On behalf of the Claimant Mr Renton submitted that the Tribunal was wrong in this respect; that it should have found that the Claimant was correct and that the Respondent was incorrect; and that its misapprehension fundamentally affected its approach to the case.[16]The law relating to working time for most categories of worker in the United Kingdom derives ultimately from a series of European Directives, the current being the EC Working Time Directive 2003 (2003/88) (the “WTD”). The principal statutory provisions implementing the WTD are the Working Time Regulations 1998 (“the WTR”), which have been amended from time to time.[17]However, there are special provisions for the working time of “mobile workers”. At a European level these are contained in the EC Road Transport Directive 2002 (2002/15) (“the RTD”). The statutory provisions implementing the RTD are the RTR.[18]Broadly speaking the statutory provisions work in the following way. The WTR sets out a number of rights and obligations concerning working time: see Part II of the WTR. These include maximum weekly working time, daily and weekly rest periods, rest breaks and entitlement to annual leave.[19]In principle a mobile worker is a worker to whom the WTR apply: see reg. 1(1) for the definitions of “worker” and “mobile worker”. But reg. 18(4) provides that many of the rights and obligations in the WTR do not apply to a mobile worker to whom the RTD applies. It is not necessary to list all the rights and obligations; one of them is maximum weekly working time.[20]The RTR, however, make provision for maximum working time. By reg. 4(2) it is provided that in any “reference period” a mobile worker’s working time shall not exceed an average of 48 hours per week. The reference period can be 17 weeks: see reg 4(3)(b). This will be the 17 week period to which Mr Simpson referred in the statement which we have quoted.[21]The RTR, following and implementing the RTD, includes a concept which is not found in the WTR. It is the concept of a “period of availability”. Such a period does not count towards the average of 48 hours per week: see reg. 5.[22]Reg. 2 of the RTR contains definitions of “period of availability”, “working time” and “workstation”. These definitions read as follows:
“Period of availability” means a period during which the mobile worker is not required to remain at his workstation, but is required to be available to answer any calls to start or resume driving or to carry out other work, including periods during which the mobile worker is accompanying a vehicle being transported by a ferry or by a train as well as periods of waiting at frontiers and those due to traffic prohibitions. “Working time” means the time from the beginning to the end of work during which the mobile workers is at his workstation, at the disposal of his employer and exercising his functions or activities, being (a) time devoted to all road transport activities, including, in particular - (i) driving; (ii) loading and unloading; (iii) assisting passengers boarding and disembarking from the vehicle; (iv) cleaning and technical maintenance; (v) all other work intended to ensure the safety of the vehicle, its cargo and passengers or to fulfil the legal or regulatory obligations directly linked to the specific transport operation under way, including monitoring of loading and unloading and dealing with administrative formalities with police, customs, immigration officers and others; or (b) time during which the mobile worker cannot dispose freely of his time and is required to be at his workstation, ready to take up normal work, with certain tasks associated with being on duty, in particular during periods awaiting loading or unloading where their foreseeable duration is not known in advance, that is to say either before departure or just before the actual start of the period in question, or under collective agreements or workforce agreements. “Workstation” means (a) the location of the main place of business of the undertaking for which the person performing mobile transport activities carries out duties, together with its various subsidiary places of business, regardless of whether they are located in the same place as its head office or its main place of business; (b) the vehicle which the person performing mobile road transport activities uses when he carries out duties; or (c) any other place in which activities connected with transport are carried out.”
[23]It will be recalled that the Respondent required the Claimant to remain in the depot for the 3 days at the end of March and beginning of April – because otherwise he would exceed his working time. Mr Simpson described this as a “period of availability”. If it were working time, it would of course have the effect of increasing the average working time during the reference period – precisely what the Respondent had to avoid.[24]However, it is plain from the definitions which we have quoted that a period of availability is defined as meaning “a period during which the mobile worker is not required to remain at his workstation”. The “workstation” includes the Respondent’s main and subsidiary places of business. So, by requiring the Claimant to remain at the depot Mr Simpson took the time out of “period of availability” and made it working hours. As Mr Simpson indicated in his own statement, this would take the Claimant outside the permissible average of 48 hours per week.[25]Put shortly, an employer cannot require a driver to remain on duty at the depot where he works during a “period of availability”. If he does, the time will cease to be a “period of availability.” It will become working time; and it will count towards the calculation of average working time during a reference period.[26]On behalf of the Respondent Mr West did not formally concede this point, but he did not make any reasoned submissions to the contrary.[27]It was this question which was the subject of what the Tribunal called “some discussion” between the Claimant and Mr Simpson. The Tribunal described it as a “grey area”. We do not agree. The very definition of “period of availability” shows that it cannot include time when the driver is required to be at the depot where he works. The Claimant was right; Mr Simpson was wrong.[28]As we leave this part of the judgment, it is convenient to mention one other point. We were referred to cases on the subject of “on call time” in connection with the WTD and the WTR: Sindicato de Medicos de Asistencia Publica (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana (C303/98) [2001] ICR 1116 ; Landeshauptstadt Kiel v Jaeger [2004] ICR 1528 ; and MacCartney v Oversley House Management [2006] ICR 510 . But the definition of “working time” in the WTD and the WTR is different to that in the RTD and the RTR, which deal with on call time by means of the concept of a “period of availability”. It is the RTD and the RTR which are relevant to the Claimant’s employment in this respect. Dismissal on public interest disclosure grounds[29]As regards dismissal for making a public interest disclosure, the Tribunal said the following. “36. However Mr Simpson did not take exception to Mr Ross telephoning VOSA. That was the alleged protected disclosure. That incident had no impact on Mr Simpson’s decision to dismiss. 37. We had some doubt as to whether that disclosure came within the definition of one that was protected. There was no suggestion that a criminal offence had been committed or was likely to be committed, nor that a person was failing to comply with a legal obligation, nor that a miscarriage of justice had occurred, nor was the health and safety of any individuals being endangered nor that the environment was likely to be damaged or that any of the above matters were being deliberately concealed.”[30]We shall return later to the Tribunal’s conclusion that telephoning VOSA had no impact on Mr Simpson’s decision to dismiss.[31]Section 43C(1) reads as follows:
“(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith - (a) to his employer, or (b) where the worker reasonably believes that the relevant failure relates solely or mainly to – (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person.”
[32]It is also relevant to cite section 43L(3), which provides:
“(3) Any reference in this Part to the disclosure of information shall have effect, in a case where the person receiving the information is already aware of it, as a reference to bringing the information to his attention.”
[33]The Tribunal does not appear to have decided the case by reason of the doubts expressed in paragraph 37 of its reasons as to whether any disclosure was protected. We consider, however, that these doubts were misplaced. What the Claimant was saying tended to show, at the very least, that the Respondent and its management had failed and were failing to comply with legal obligations to which they were subject: see section 43B(b) of the Employment Rights Act 1996 . The RTR contained such obligations.[34]Mr Renton submitted that the Tribunal erred in law in failing to consider whether there was a qualifying disclosure under section 43C(1)(a) when the Claimant raised with his manager Mr Simpson whether it was lawful for the Respondent to make him attend work during the period of availability. He further submitted that disclosure to VOSA would fall within section 43C(1)(b)(ii).[35]The Tribunal appears to have proceeded on the basis that the only potential relevant disclosure was to VOSA: see paragraph 36. We do not see why the Tribunal took that view. If an employee brings to the attention of a member of his own management facts which indicate that in a particular respect or respects the employer has failed, is failing or is likely to fail to comply with any legal obligation to which it is subject, he is making a protected disclosure: see section 43C(1)(a) and section 43L(3). To that extent we agree with Mr Renton’s submission.[36]We do not, however, consider that disclosure to VOSA falls within section 43C(1)(b)(ii).[37]In our judgment this provision must be read in its statutory context. Subsequent provisions within Part IVA deal with disclosure to a Minister of the Crown (section 45E), to a prescribed person (section 45F) and in other cases (section 45G). Pursuant to section 45F the Public Interest (Prescribed Persons) Order 1999 makes provision for a range of public bodies to be treated as prescribed persons for matters within their area of responsibility.[38]We consider that the purpose of section 43C(1)(b)(ii) was to protect disclosure of a relevant failure if it was made to a person having legal responsibility for the matter. Suppose, for example, that an employee discovers that the employee of a contractor is breaking the law in a way for which the contractor bears responsibility. The employee will be protected under section 43C(1) if he tells his own employer (section 43C(1)(a)), the employee of the contractor (section 43C(1)(b)(i)) and the contractor (section 43C(1)(b)(ii)). In our judgment section 43C is not concerned with disclosure to regulatory authorities. If it were otherwise section 45 and the Regulations made under it would be otiose.[39]This does not mean that the Claimant’s disclosure to VOSA was unprotected. For example, depending on the Tribunal’s findings, the disclosure might be protected under section 43G, on the basis that the Claimant had previously made a disclosure of substantially the same information to the Respondent. Dismissal on health and safety grounds[40]The Tribunal said:
“39. It was never established by Mr Ross what the health and safety issue was. On balance we think it was that the respondents took exception to Mr Ross pinickity inspection of his vehicle. However the respondents were content to deal with any problem with vehicles however small. We accepted and were impressed that any problem with a vehicle was dealt with. It was up to the drivers to make sure that they communicated a defect to management but this management would put that defect right. In any event Mr Ross did not have the protection of the provisions in Section 100. He was not designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety. He was not a representative of the workers on matters of health and safety nor had he taken part in consultation under the 1996 Regulations. We did not hear whether there was a safety committee or such a representative. If Mr Ross did raise an issue specifically about his vehicle that matter was immediately dealt with, and there was never any danger at all to either himself or any other employees.”
[41]Section 100(1)(c) of the Employment Rights Act 1996 provides as follows. “(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 - …. (c) being an employee at a place where –(i) where there was no such representative or safety committee, or(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety.”[42]Mr Renton submits that the Tribunal erred in law in failing to consider and address properly section 100(1)(c) of the 1996 Act.[43]Mr Renton criticises the Tribunal for failing to grapple with the evidence before it. The matters which the Claimant disclosed to the Respondent included damage to vehicle brakes, faults with vehicle lights including brake lights, incorrect MOT discs, insecure loads, insufficient fuel, insufficient coolant, worn tyres and human excrement in the vehicle. The Tribunal has not made findings relating to these matters and has not considered whether they were circumstances connected to his work which he reasonably believed were harmful or potentially harmful to health and safety, and whether he brought them to his employer’s attention by reasonable means. Further he criticises the Tribunal for failing to consider section 100(1)(c)(i) and (ii) as a whole. Even if there was a safety committee or representative it was not reasonably practicable for the Claimant to raise these matters by those means for these were vehicle faults which he had to address when he inspected the vehicle and before he took it out of the depot.[44]We accept these criticisms.[45]There will, we think, always be some employees who make allegations which relate to safety which are unjustified. But there will also be employers who dislike being challenged on safety matters, whose response is to allege that the employee is pernickety, self-serving or worse. In order to decide whether, on the one hand, the Claimant was making excuses to avoid work or to extend his working time or whether, on the other hand, he was raising legitimate points relating to vehicle safety which ought to have been promptly addressed for safety reasons, it was essential for the Tribunal to make findings as to the detail. This does not mean that the Tribunal had to give extended treatment to every instance. But the Tribunal made no finding of any kind except perhaps that the Claimant was “pinickity” (sic), a finding which is not sufficient to deal with the nature of the Claimant’s case properly.[46]We also consider that section 100(1)(c) was potentially engaged. It would appear that neither side informed the Tribunal whether there was a safety committee or safety representative. We think it is unfortunate that the Respondent, which must surely have known the answer to this question, did not deal with it. The Tribunal seems to have proceeded on the basis that there was a representative or safety committee even though it had no evidence that there was. Even if, which we doubt, it was justified in reaching that conclusion, it was then required to address section 100(1)(c)(ii). It did not do so. Dismissal and detriment for reason relating to working time[47]Section 101A of the Employment Rights Act 1996 provides:
“101A Working time cases (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 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. … (2) A reference in this section to the Working Time Regulations 1998 includes a reference to – (a) the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003; (b) the Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004; (c) the Cross-border Railway Services (Working Time) Regulations 2008.”
[48]Section 45A, which we need not set out in full, provides that a worker has a right not to be subjected to a detriment in similar circumstances.[49]The Tribunal said:
“40. In relation to working time issues there was no breach of the working time regulations themselves by the respondents. There was a different interpretation over what was defined as ‘a period of availability’ but there was no detriment to the claimant in relation to having to stay in the depot for three days and not drive. Indeed the respondents were protecting both themselves and the claimant under the Working Time Regulations by insisting that the claimant did not drive excessive hours in contravention of the Working Time Regulations and the claimant suffered no detriment at all as he was paid for that period.”
[50]It follows from what we have already said that this paragraph is erroneous. It does not identify the appropriate statutory provisions (the RTR). Keeping the Claimant in the depot during a period of availability did not reduce his working hours. Although the Claimant was paid for the period in question it was in our judgment plainly a detriment to require him to stay at the depot.[51]There is, however, a difficulty in the way of reliance upon section 101A (and section 45A) for the Claimant. Although section 101A(2) provides that a reference to the WTR includes a reference to certain other regulations concerning working time, the RTR is not included among those regulations. We note also that there is no mention of the RTR in section 104 (dismissal for assertion of a statutory right) or in section 45A (detriment on WTR grounds) where there are similar references to the WTR and to other working time regulations which are concerned with specific sectors.[52]Neither advocate was able to tell us why the RTR should not have been included with other regulations mentioned in section 101A(2). We note, however, the following. Firstly, the RTD made specific provision for enforcement by penal measures which were required to be “effective, proportional and dissuasive”: see Article 11, a provision with no equivalent in the WTD. As regards the RTD there was, therefore, an emphasis on enforcement by penal measures. Secondly, the RTR are not the only sector-specific working time regulations which are omitted from section 101A, section 104 and section 45A. The same applies to the Merchant Shipping (Hours of Work) Regulations 2002 and the Civil Aviation (Working Time) Regulations 2004 . While noting these matters, we nevertheless remain surprised that the RTR is not included within the scope of section 101A and not mentioned in section 101A(2).[53]Mr Renton submitted that section 101A and section 45A should be interpreted as if a reference to the WTR included a reference to the RTR. He relied on the principle of EU law whereby courts and tribunals of member states were required so far as possible to interpret domestic legislation in order to give effect to the state's obligations under EU law. But proper effect must be given to the words “so far as possible”: see the discussion in Attridge Law v Coleman [2010] ICR 242 at paras 11-20. In our judgment no interpretive technique will allow us to add the RTR to a list of regulations contained in a statute when Parliament has not chosen to make such provision. Mr Renton also submitted (at least in substance) that direct effect should be given to the RTD. He relies on Fuss v Stadt Halle [2010] IRLR 1080 at paras 33, 53. But this, unlike Fuss , is litigation between private entities; and we do not think it is permissible to give horizontal direct effect to the RTD.[54]In our judgment, therefore, section 101A and section 45A cannot be read as though a reference to the WTR included a reference to the RTR. Principal reason for dismissal[55]The Tribunal said:
“42. Ultimately there was no connection or causal link between the claimant’s dismissal and health and safety issues, working time regulation issues or disclosure issues. 43. The claimant was dismissed because he was difficult to work with and had a poor attitude to his work colleagues (including management). There was no other reason for dismissal.”
[56]Mr Renton submitted that in the light of the Tribunal’s misunderstanding of the RTR issue and in the light of its failure to grapple with the Claimant’s case concerning his complaints about vehicle safety these findings of the Tribunal could not stand.[57]On behalf of the Respondent Mr West concentrated his submissions on this point. He submitted that the Tribunal’s finding as to the principal reason for dismissal was a question of fact; that the Appeal Tribunal could not and should not disturb its finding; and that on the evidence there was ample material to justify the finding.[58]We prefer the submissions of Mr Renton. We think that the Tribunal fundamentally misunderstood the Claimant’s case concerning the RTR, and that its finding that the Claimant “was difficult to work with and had a poor attitude to his work colleagues including management” cannot safely stand. It is one thing to say that an employee is “difficult to work with” where there is a genuinely grey area about a regulatory matter; another thing altogether to make the same finding if the employee is plainly right on a subject which the employer should know and understand. It is one thing to find that an employee “has a poor attitude to work colleagues” if his complaints about vehicle safety are unjustified; another if he was broadly justified in asking for matters to be corrected before he left the depot. The Tribunal did not grapple with the RTR at all and did not make proper findings about the issues relating to vehicle safety. Result[59]We have, we think, said sufficient to show that the appeal must be allowed and the matter remitted to be re-heard entirely afresh by a differently constituted Tribunal.[60]We think it is highly desirable that a case management discussion should be held first to list carefully the issues which the full hearing will consider and to ensure so far as practicable that all sides are ready for the full hearing.