Appeal No. EAT/10/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 28 November 1994

	Before

	HIS HONOUR JUDGE BYRT QC

	MISS J W COLLERSON

	MR PETER DAWSON OBE

MR H NELSON	APPELLANT

G B FARRAR & CO LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR E JANKOWSKI
(Solicitor)
Newham Citizens Advice Bureau Legal Service
13 Albert Road
London E16 2DW

For the Respondents	MR S MOON
Trade Federation                  Representative
Building Employers              Confederation
82 New Cavendish Street
London WlM 8AD

	JUDGE BYRT QC:  This is an appeal from the decision of the Industrial Tribunal sitting at London (North).  Its decision was promulgated on 12 November 1992 and in that decision they decided that the Appellant had not been dismissed his employment.

	The findings of fact of the Tribunal were that the Appellant had been employed by his employers as a carpenter since about 1983 and in June 1991 he was still working for them.  In that month, work became short and, as a result, on 3 July the Respondents, the employers, wrote to the Appellant stating that as from 8 July they would have to lay him off temporarily and that, accordingly, he should register as unemployed.

	On receipt of that letter, the Appellant sought advice from a rights centre and, as a result of that, on 11 July he wrote back to the Respondents alleging breach of contract and treating the breach as constructive dismissal.  That letter was followed up by another on 11 July, which I do not think really carried his points much further forward. 

	On 30 July the Respondents wrote back to the Appellant, stressing the fact that he had misunderstood the situation and that he was not dismissed.  They referred him to the fact that his contract incorporated the National Working Rule Agreement negotiated with the National Joint Council of the Building Industry, and that, in that Agreement, there was a right entitling the employers temporarily to lay off employees.  Notwithstanding that letter, on 15 August the Appellant applied to the Industrial Tribunal alleging constructive dismissal as from 12 July, presumably that being the date when the employers would have received his letter dated 11th.

	The issues in this case are quite simple.  First of all, what was the Appellant's contract of employment and, more specifically, did it incorporate the National Working Agreement and clause 1.4, which deals specifically with lay-off.

	The Respondents say that the statement of the terms of the Appellant's contract of employment was sent to him on 20 September 1983, a matter of a couple of weeks after he had commenced employment, that it had been included with his pay slip and it was plain from that statement that the contract incorporated the National Working Agreement.

	The Appellant said in evidence before the Tribunal that he had never received that statement and in their findings the Tribunal stated that they were quite unable on the evidence before them to decide whether the Appellant had or had not received that statement of terms.

	The Tribunal went on to find as a fact that the Appellant's contract of employment did incorporate the National Working Agreement and that the Appellant himself well knew that to be the case.  In fact coming to that conclusion, it would seem they relied upon evidence the Appellant gave where he said:

		"The wages went up each year and according to working rule agreement, I knew about that, I would want to know why the national agreement was not put into effect [if it were not].

	In another place he says:

		"I accept that the working rule agreement governed my contract."

	In appealing to the EAT, the Appellant criticizes the Tribunal's finding, saying that there was no finding that the Appellant knew of the specific clause, clause 1.4, relating to lay-off, nor is there any finding that the Appellant knew its effect.  Further, in argument before us today by an amendment which we allowed of his grounds of appeal, Mr Jankowski, who has appeared on behalf of the Appellant, has argued quite simply that this is a case where, if there was no express agreement incorporating the National Working Agreement within the Appellant's terms of contract, it could only have been implied as a result of custom and practice.  He goes on to state that there was evidence before the Tribunal which shows that the employers' attitude towards the Working Agreement was somewhat variable in that on occasions they paid sums in excess of that which were legislated for by the Working Agreement and on other occasions they did not strictly follow the allowances for travelling expenses and so on.  He argues from that that it would be wrong and unsafe for the Tribunal to infer that the Working Agreement had been incorporated by implication.  

	In our judgment, it is for the Tribunal to decide what are the terms of the contract having heard the evidence for the parties.  The decision of Jones v Associated Tunnelling Company Limited [1981] IRLR has been quoted to us.  This says that the Tribunal must approach with caution the drawing of inferences based upon the conduct of an employee in challenging or acquiring in any terms of conditions which are imposed upon him by an employer.  In particular, that caurionery word especially relates to circumstances, as in the above quoted case, where there is alleged to have been a variation of terms and conditions of employment.

	We do not think that that authority has any direct application in this case.  In this instance the Appellant is a person experienced in the building trade and had for a number of years been working in a variety of construction firms, to which this Working Agreement applies.  In fact, he had been working for this firm some eight or nine years before this problem arose.  He was familiar with the fact that many firms in the construction industry applied the National Working Agreement and, in particular, as the Tribunal found, he was aware that it applied to the contracts in this particular firm that was now employing him.  In our judgment, it is not significant that, he was unaware of a particular sub-clause of it, like clause 1.4.  If, he continued to work with his employers, fully aware that the terms and conditions under which he was working was governed by the National Working Agreement, it is in our judgment a legitimate inference for the Tribunal to draw that he consented to work under those conditions and this, indeed, was the finding of the Industrial Tribunal.

	We have considered the reasons they advanced for their decision.  We are satisfied that they directed themselves correctly as to the points of law they had to take into account and their application to the facts which were for them to decide. 

	In those circumstances we find nothing in this case of the nature of the point of law which would enable us to disturb the findings of the Industrial Tribunal and, accordingly, it is our judgment that this appeal must be dismissed.