Appeal No.	 EAT/154/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 October 1998
Judgment delivered on 3 March 1999

Before
HIS HONOUR JUDGE H J BYRT QC
LORD GLADWIN OF CLEE CBE JP
MR J A SCOULLER

MRS J SHEPHERD & OTHERS	APPELLANTS

SEFTON METROPOLITAN BOROUGH COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR M FORD
(of Counsel)
Instructed by:
Ms Michele Sedgwick
Legal Officer
UNISON
1 Mabledon Place
London
WC1H 9AJ	
For the Respondents	MS A WHYTE
(of Counsel)
Instructed by:
The Solicitor
Sefton Metropolitan Borough Council
Town Hall
Lord Street
Southport
Merseyside
PR8 1DA	

	JUDGE BYRT QC:		This is an appeal from a decision, promulgated on the 19th November 1996, of an Employment Tribunal Chairman sitting alone in Liverpool. The decision related to 26 applications in which it was alleged that the employers, Sefton Municipal Borough Council, had made unlawful deductions from their wages as a result of their ceasing to provide the applicants with the opportunity to work overtime. The Chairman’s decision was that there was no unlawful deduction of wages, and so the claims failed. The employees appeal.

	Each of the appellants is a home care assistant, employed by the respondents to discharge the latter’s responsibility to provide home care assistance for the elderly and disabled residents of the Borough. Only one of their number, a Mrs Cartmel, gave evidence before the Chairman. We understand that the circumstances of her employment was not only representative of the other 24 applicants (now appellants) but also similar to that of some 480 people employed in the capacity of home care assistants by the respondents. Each of these employees were provided with a statement of his or her terms and conditions of employment. This stipulated that the working week was to be 30 hours. All reference to a requirement that the employee would be required to work a number of extra hours on overtime was specifically deleted.

	Whilst ordinarily it was expected that the 30 hours would be worked during a five-day week, there was nothing in the written contract which expressly provided that they should be worked over a five-day period within the week, or that they should be worked exclusively between Monday and Friday. The week’s work was related to the number of hours rather than days worked.

	Of course, the respondents had to provide the elderly/disabled with a service seven days a week. Before the new working arrangements (to which we refer later) were introduced, the week-end cover was provided by volunteers from amongst the 480 home carers who were willing to come in and work the extra hours entailed, on overtime at week-end rates.  This meant that some of the carers worked a seven-day week. It was however an important finding of fact made by the Chairman that there was no contractual requirement that the home carers should work the overtime when it was needed. There was no certainty of expectation that overtime would be available for any specific individual. Neither the employer nor the employee was, in any sense, under an obligation of any kind in respect of overtime.

	In 1996, the respondents introduced new working arrangements. They put an end to the practice whereby some home carers were working a seven-day week. It was thought that this practice resulted in some employees working excessive hours which was bad for the employee, bad for the customer, contrary to European Community recommendations and led to inefficiency in budget management. The new arrangements prohibited any home carer working more than five consecutive days without a two-day rest break. These new arrangements did not prohibit overtime being worked when available and as the employee wanted to work it. However, the most likely consequence of the new arrangements was that, if a home carer worked Saturday and Sunday, he was prevented from working two of the week days in the next week or pro tanto if he worked only one of the week-end days.

	The appellants’ case before the Employment Tribunal Chairman was that long usage had brought about a variation in their contracts of employment whereby the right to overtime payments became incorporated into their contracts. In considering that case, the Chairman observed that the extent of the overtime worked by the individual applicants varied greatly from time to time and from one applicant to another. In making his ruling, the Chairman concluded that, on the facts, it was clear to him that overtime was always the subject of voluntary arrangement outside the contractual obligations. The original undertaking of overtime was the voluntary response to an invitation; it did not alter contractual relations. He declined to find a contractual right to overtime and accordingly dismissed the applications.

	The appellants have not sought to argue that point before the EAT. At the preliminary hearing, they advanced a new argument, now outlined in an amended notice of appeal, and on the strength of it, obtained leave to argue it at a full hearing of this Tribunal.

	The argument now advanced is that there is an implied term of the appellants’ contracts that each employee has a right to be paid for a guaranteed minimum of 30 hours work per week, if he is ready, willing and able to work those 30 hours between Monday and Friday. It is submitted that preventing an employee working two of those weekdays if they have worked the Saturday and Sunday amounts to a breach of that implied term, and the withholding of salary for those weekdays’ work if the employee is ready, willing and able to work them, an unauthorised deduction from wages, contrary to section 13 of the Employment Rights Act 1996.

	Mr Ford, for the appellants, criticises the Chairman for failing to make certain findings of fact relevant to the new submission. It is said he should have made a finding as to the consideration moving from the employees to the employer in return for the weekly salary. Whilst the contract stipulates 30 hours, when were those hours to be worked? Was there an implied guarantee that they would be worked between Monday and Friday? Was there an implied term that the employee would be paid for any lost time within that period due to the employer’s prohibition, if the employee was ready, able and willing to work that lost time?

	It was implicit in the appellants’ case that they were not asking the Tribunal Chairman to make any factual findings about the amounts of any unauthorised deductions in any particular case. Mr Ford said the appellants were seeking a determination of principle.

	Ms Whyte, for the employers, submitted that it was not surprising the Chairman failed to make findings as to the relevant implied terms Mr Ford postulates. The questions for determination now being posed were quite different from those being asked below by the appellants. The basic implied term Mr Ford now relies upon was not properly formulated until his submissions in reply before the EAT. The issues the appellants’ case now raised, suggested further findings of fact which would be relevant. The appellants’ case now, was not for loss of overtime but for loss of basic pay, payable for hours the appellants were ready, willing and able to work. Were the new arrangements the employers sought to impose imposed in breach of some contractual term? If so how?

	If we were prepared to countenance the new basis upon which the appellants sought now to advance their appeal, then clearly we would have to do as Mr Ford invites us to do. We would have to remit the case to a freshly constituted tribunal so that findings of fact could be made, germaine to the new case. We have carefully considered the judgment of Judge Peter Clark in Langston v Cranfield University [1998] IRLR 172 and in particular the passage where he advised that the generally accepted principle that a party will not be permitted to raise new points on appeal which could have been ventilated below must be seen in the context of cases where a principle is so well established that an industrial tribunal may be expected to consider it as a matter of course. This is not, in our judgment, the situation in the present case we are presently considering. The principle at stake arises on the very special facts of the case, and the Chairman is not to be criticised for failing to have spotted, without prompting, Mr Ford’s new ingenious argument. There is another principle in issue here: an appellate tribunal will not, save in the most exception case, entertain a new point the resolution of which requires the case to be remitted for further findings of fact below. Ms Whyte submits that, for that reason, we should decline to entertain the new argument.

	She supports that submission with a further point. She submits that the whole basis of the appellants’ application is misconceived. This is not a claim under section 13 for recovery of an unauthorised deduction of wages. The appellants are seeking a determination of the terms and conditions of their contracts of employment, and this entails a reference under section 11 of the Act.

	We accept each of those submissions and accordingly are not willing to entertain Mr Ford’s new point of appeal, notwithstanding the care and clarity with which he has argued it. We can see nothing wrong with the way the Tribunal Chairman dealt with this matter having regard to the way the case was presented before him. Accordingly, we dismiss the appeal.