Appeal No. UKEAT/0293/11/RN

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

	At the Tribunal
	On 2 December 2011
	   Judgment handed down on 21 December 2011

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

ARRIVA LONDON SOUTH LTD	APPELLANT

MR N G NICOLAOU	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR RUSSELL BAILEY
(of Counsel)
Instructed by: 
Moorhead James LLP
Kildare House
3 Dorset Rise
London
EC4Y 8EN	
For the Respondent	MR DAVID MITCHELL
(of Counsel)
Instructed by:
Messrs O H Parsons & Partners Solicitors
3rd Floor, Sovereign House
212-224 Shaftesbury Avenue
London
WC2H 8PR	

SUMMARY
VICTIMISATION DISCRIMINATION – Interim relief
WORKING TIME REGULATIONS

Whether employee who had not opted out of 48 hour working week (WTR reg. 4(1)) suffered detrimental treatment when refused the opportunity to work voluntary overtime on a rest day.

Consideration of s.45A ERA and relevant discrimination/victimisation cases.

Held: complaint failed.  The reason why he was refused rest day working was not because he refused to sign the opt out but in order to implement a policy, found by the Employment Judge to be reasonable, to ensure compliance with the qualified duty on the employer imposed by reg. 4(2) WTR.

HIS HONOUR JUDGE PETER CLARK 
Introduction
1.	The Claimant, Mr Nicolaou, presented a complaint of detrimental treatment contrary to s.45A Employment Rights Act 1996 (ERA) against his employer, the Respondent Arriva London South Limited, to the London South Employment Tribunal on 17 December 2009.  The claim was resisted and came on for hearing before Employment Judge Nash sitting alone on 3 March 2010.  By a Judgment with Reasons promulgated on 12 April 2010 that Judge upheld the complaint but made no award of compensation (the first decision).  Against the first decision the Respondent appealed (EAT/0280/10/DA).  That appeal was heard before a full division of the EAT (HHJ McMullen presiding) on 22 November 2010; the EAT allowed the appeal and remitted the matter to the same Employment Judge for further consideration.  We are told by Mr Bailey, who has appeared for the Respondent throughout, that the remission took the following form.  The case was listed for a telephone Case Management Discussion, I assume on 10 March 2011.  At that telephone hearing Mr Bailey represented the Respondent and the Claimant’s solicitor (not Ms Minto of counsel) represented his interests.  Thereafter the Employment Judge considered the matter in light of the EAT’s Judgment.  By her Judgment with Reasons dated 20 April 2011 (the second decision) the Employment Judge arrived at the same determination as in her first decision, namely that the complaint was upheld but no compensation was ordered.  

2.	Against the second decision the Respondent again appealed.  The appeal was permitted to proceed to a full hearing on the paper sift by Bean J.  That is the appeal now before me (the second appeal).  By his Answer the Claimant sought to raise a cross-appeal.  However, he was out of time for doing so and the Registrar refused to extend time.  It follows that the Claimant’s cross-appeal does not fall for determination by me, although I shall refer to the point raised in the cross-appeal in due course.  I heard oral argument on 2 December 2011 and then reserved my judgment.

The statutory framework
3.	The Working Time Regulations 1998 (WTR) were passed to implement into domestic law the Working Time Directive (93/104/EC, now consolidated as Directive 293/88/EC).  Article 6 of the Directive provides that each Member State shall take the measures to ensure that, in keeping with the need to protect the safety and health of workers, the average working time for each seven-day period, including overtime, does not exceed 48 hours.

4.	The Directive’s objective is to improve workers’ health and safety at work.  It therefore provides for proper rest periods and a limit on hours worked.  Regulation 4 WTR provides, so far as is material:

(1)	Unless his employer has first obtained the worker’s agreement in writing to perform such work, a worker’s working time, including overtime, in any reference period which is applicable in his case shall not exceed an average of 48 hours for each seven days [the absolute duty].

(2)	An employer shall take all reasonable steps, in keeping with the need to protect the health and safety of workers, to ensure that the limit specified in para. (1) is complied with in the case of each worker employed by him in relation to whom it applies….[the qualified duty].

5.	It is common ground in this case that the 48 hour working week for non-opted out workers shall be averaged over 26 weeks (see reg. 4(5)).  Enforcement of the qualified duty of employers falls to the Health and Safety Executive (HSE); reg. 28.  By reg. 29(4) an employer guilty of a failure to comply with a relevant requirement (including that under reg. 4(2)) shall be liable on conviction to a fine.

6.	Section 45A ERA protects a worker from victimisation by his employer in relation to his rights under the WTR.  It provides, so far as is material:

“(1) A worker has the right not to be subjected to any detriment [short of dismissal; see sub-section (4)] by any act, or any deliberate failure to act, by his employer done on the ground that the worker -
……
(c) failed to sign a workforce agreement for the purposes of those Regulations [WTR], or to enter into, or agree to vary or extend, any other agreement with his employer which is provided for in those Regs.”

7.	The protection afforded to workers under s.45A forms part of a group of protective measures in Part V ERA.  Others include those relating to Sunday working (s.45) and whistleblowing (s.47B).  Dismissal of an employee for those reasons will be automatically unfair under Part X (see, respectively, ss.101A (Working Time); 101 (Sunday working) and 103A (whistleblowing)).

8.	The s.45A right is enforceable, in common with the other rights which I have mentioned, by a complaint to the Employment Tribunal under s.48 ERA.  Section 48(2) provides:

“On such a complaint it is for the employer to show the ground on which any act, or deliberate failure to act was done.”

The facts
9.	At the first hearing the Employment Judge heard oral evidence from the Claimant and Mr Robinson, the Respondent’s Operations Manager.  

10.	The Respondent operates bus services.  It has about 1800 employees of whom 90 per cent are drivers.  The Claimant commenced his employment as a driver in March 1988.

11.	Following implementation of WTR (1 October 1998) the Respondent introduced a policy whereby no working rest days were to be offered to a driver who had not signed an opt out from the 48 hour working week (under reg. 4(1)).  It is common ground that the Claimant, as with some 52 per cent of the Respondent’s drivers, had not signed the opt out form (EAT bundle p61).  Mr Robinson had no input into that company policy (second decision, para. 7).  

12.	With the assistance of counsel, who have without objection supplemented the Employment Judge’s findings, the relevant working arrangements were as follows.  By agreement with the trade union the average scheduled working week for drivers was 38 hours, with a maximum of 42.5 hours.  Those working less than 38 hours were paid for 38 hours; those working more were paid for the hours worked.  The scheduled working week was spread over 5 days, giving 2 days’ rest unless the driver opted to work a rest day.  Overtime was voluntary, save where a driver went over his working day shift due to adverse traffic conditions.  Mr Mitchell told me, on instructions, that the standard hourly rate is £12.16 and that overtime (including working rest days) was paid at 1⅓ time, that is £18.05 per hour.  Rest day working was limited to a maximum of 6½ hours.  The Claimant worked the average 38 hour week, involving daily shifts of 7 hours 36 minutes.

13.	The policy for non-working rest days for non-opted out drivers fell into desuetude and the Claimant worked on average 4-5 rest days p.a. until an audit was carried out in June 2009.  It was then noticed that the policy was not being enforced.  It was re-implemented by a notice to all drivers posted in the Norwood garage from which the Claimant was based.  The wording of the first notice dated 25 July caused some bad feeling among drivers due to its tone and it was replaced by a second notice dated 10 August which read:

“Worked rest days and overtime
Further to our earlier notice, please note that with effect from SATURDAY 15TH AUGUST no worked rest days or pieces of overtime will be allocated unless the driver concerned has signed an Opting Out Agreement form (copy attached).  This follows adverse comments made by our Internal Audit team after their June visit.
In order to clarify any potential misunderstandings, please note that there is no compulsion to sign this form and signatories may, at any time, give six weeks notice to terminate the opt out.  A majority of staff have already done so but if you have not already expressed a preference please let a Garage Supervisor know as soon as possible.
If you have any other questions or concerns please speak to either a Garage Supervisor or Manager.”

14.	On 6 September 2009 the Claimant wrote a letter to management.  His complaint was that he had been told that if he did not sign the opt out agreement he would not receive ‘any rest days or overtime’.  He added that he had no intention of breaching the opt out agreement, therefore management cannot penalise him in the shape of refusing or not permitting him to work one rest day a week.  Mr Robinson replied to that letter on 18 September, offering a meeting to discuss the matter but the Claimant did not then take further action on his complaint.

15.	On 21 September 2009 the Claimant was mistakenly rostered for a working rest day.  When Mr Robinson discovered the mistake he remedied it by withdrawing the working rest day.  The Claimant then presented his claim form ET1 to the Employment Tribunal on 17 December 2009.

The previous Tribunal decisions
16.	Having directed herself in the first decision as to s.45A ERA; reg. 4(1) and (2) WTR and reg. 4(5) (agreement to exclude the 48 hour maximum working week) and the definition of detriment contained in Shamoon v RUC [2003] IRLR 285 the Employment Judge held that the Claimant has been subjected to a detriment (para. 20) and that ‘as a straightforward matter of causation that the detriment was caused by the Claimant’s failure to sign the opt out’ (para. 23).  The claim succeeded.  She declined to order compensation for the reasons given at paras. 27-30.  She did however make a declaration that the complaint was well-founded (para. 25).

17.	On appeal the EAT appear to have focused on the need to consider the qualified duty laid on the Respondent to comply with reg. 4(2) WTR (para. 20).  They held that the Employment Judge’s reasons were not ‘Meek-compliant’ and remitted the case, posing this question (para. 21):

“What is the view of the ET of the reasonableness of the step taken by the Respondent in this case viz to avoid the risk of breach it excludes from the opportunity of working on rest days those who have refused to opt out?”

18.	Following remission the Employment Judge addressed and answered that question (para. 27).  She found that the blanket ban on working rest days by non-opted out drivers was reasonable in the circumstances.  I should say at this point that in his cross-appeal the Claimant sought to challenge that finding.  However, for the reason given earlier I am not able to entertain that challenge.  Thus the Employment Judge’s finding as to the reasonableness of that policy, enforced after 15 August 2009, stands.

19.	The Employment Judge went on to consider the relevance of that finding to the liability question raised by s. 45A ERA.  She held that there was no warrant in the legislation nor the EAT judgment for applying a reasonableness defence into the simple causation test of whether an employee had been subjected to a detriment because he or she had failed to forgo a right given to him or her by reg. 4(1) (para. 36).  The question of reasonableness was relevant to quantum (remedy), rather than liability.  Having found that the Claimant had suffered a detriment (para. 16) she concluded, at para. 39:

“Whatever the reasonableness of the Respondent’s policy as judged solely on reg. 4(2), in respect of the Tribunal’s jurisdiction under reg. 4(1) and s.45A it was clear from the evidence of Mr Robinson that the sole reason for the withdrawal of work rest days was the Claimant’s refusal to opt out.  The Tribunal accordingly concluded that the detriment had been applied on the ground of the Claimant’s refusal to forgo his rights contrary to s.45A.”

The legal principles
20.	At para. 38, second decision, the Employment Judge noted that the EAT (in remitting the case) did not state that the case law provided by the Respondent concerning discrimination and the causation of a detriment (or dismissal) was of assistance.  Nor did the EAT address the Respondent’s submission ‘that if an employer was negligent in performing its statutory duty it could not be regarded as subjecting an employee to a detriment’.  She also referred to the EAT decision in Fecitt v NHS Manchester [2011] IRLR 11 (HHJ Serota QC presiding) and did not find it of assistance.  I shall return to that case later.  Accordingly, it seems that the Employment Judge did not draw on the discrimination jurisprudence in determining this complaint.

21.	In my judgment, without any criticism of the Employment Judge being intended since she did not receive full guidance from the EAT, she was wrong to take that approach.  As Maurice Kay LJ observed in N Glamorgan NHS Trust v Ezsias [2007] IRLR 603, para. 30:

“Whistleblowing cases have much in common with discrimination cases, involving as they do an investigation into why an employer took a particular step, in this case dismissal.”

22.	In my opinion the same may be said of this s.45A complaint, which is part of the Part V ERA protection referred to earlier.  It is therefore necessary to review the principles emerging from the discrimination cases to which I have been taken.

23.	The s.45A protection is akin to protection against victimisation.  The ‘protected act’ in this case is the Claimant’s right not to enter into a written agreement with his employer opting out of the 48 hour maximum working week provided for in reg.4(1) WTR.  The prohibited act is where his employer subjects him to a detriment (by act or omission) on the ground that he has exercised that right (enshrined in s.45A(1)(c)).

24.	Whether an act by the employer is done on the grounds of or by reason of the employee doing a protected act amounts to the same thing – see Nagarajan v LRT [1999] IRLR 572, para. 18 per Lord Nicholls.  The question is why did the Claimant receive the treatment complained of; the reason why question.

25.	The protected act need not be the sole cause of the treatment.  It is enough that it has a significant influence on the outcome – Nagarajan, para. 19.  The employer may have mixed motives – see O’Donoghue v Redcar [2001] IRLR 615.  

26.	The burden of proof laid upon the employer by s.48(2) ERA was considered in Fecitt.  The EAT applied the Igen v Wong [2005] ICR 931 test applicable to discrimination cases to that whistleblowing complaint under s.47B ERA; it was for the employer to show that the treatment afforded by the employer was in no way whatsoever on the grounds that the Claimants had made a protected disclosure.  That approach was the subject of some criticism to which I was referred in Harvey on Industrial Relations v1/C1/244.  However, since that section of Harvey was last updated to 1 July 2011 the Court of Appeal has considered the EAT approach in Fecitt; (2011) EWCA Civ 1190, 25 October 2011.  Giving the leading judgment of the court, with which Davis and Mummery LJJ agreed, Elias LJ dealt with this aspect of the appeal, albeit strictly obiter, at paras. 36-45.

27.	In summary his Lordship rejected the Igen test adopted by the EAT and that advanced on behalf of the employer, adopting the unfair dismissal formulation in asking whether the making of the protected disclosure was the sole or principal reason for the action complained of.  Instead he preferred the submission made on behalf of the claimants that liability arises if the protected disclosure is a material factor in the employer’s decision to subject the claimant to a detrimental act (para. 43).  I respectfully adopt that approach in the present case, which seems to be entirely consistent with that of Lord Nicholls in Nagarajan and further fits with the approach to the constructive dismissal question, was the repudiatory act of the employer an effective, although not necessarily the sole cause of the employee’s resignation – see Jones v Sirl [1997] IRLR 493; Nottinghamshire County Council v Meikle [2004] IRLR 703 (CA).

28.	The reason why question must not be confused with the ‘but for’ test.  The distinction was closely analysed by Underhill P in Amnesty International v Ahmed [2009] ICR 1450.  The President returned to that theme in Martin v Devonshire [2011] ICR 352, by then having had the benefit of the Supreme Court Judgments in the JFS case [2010] IRLR 136.  In short, whereas the but for test may be appropriate in ‘criterion’ cases (see James v Eastleigh BC [1990] ICR 554) it is the reason why question which prevails in circumstances where the employer’s mental processes (conscious or subconscious) are in issue.  The latter question arises in the present case.

29.	Although reasonableness is not, of itself, a defence to a s.45A complaint, the reasonableness of the employer’s conduct came into play in two House of Lords cases which fell on each side of the line.  In CC of W Yorkshire v Khan [2001] ICR 1065, the question was whether the employer had victimised PS Khan contrary to s2 Race Relations Act 1976 by not providing a reference for him to another force which he applied to join, contrary to their usual practice. The reason given was that the force was engaged in litigation brought by the claimant and that they did not wish to prejudice their position in that litigation; it was not because he had done a protected act (complaining of race discrimination).

30.	The Employment Tribunal, EAT (on which I sat) and Court of Appeal upheld the complaint.  The House of Lords reversed those decisions and dismissed the complaint.  In the course of his speech Lord Nicholls observed (para. 29) that in this context causation is a slippery word.  He opined that the victimisation provisions could not have been intended to prejudice an employer’s proper conduct of his defence in the litigation so long as he acted honestly and reasonably (para. 31).

31.	The House of Lords returned to that theme in Derbyshire v St Helens MBC [2007] ICR 841, a victimisation case which went the other way.  The ET and the EAT (Cox J presiding) held that letters written to employees conducting equal pay claims against their employer amounted to an act of victimisation.  The CA (Mummery LJ dissenting) allowed the employer’s appeal.  The HL restored the ET decision.  At paras. 24-28 Lord Hope considered the question of honest and reasonable conduct.  He accepted that an employer is entitled to take steps to protect his own interests (para. 26).  However, if he does anything which might make a reasonable employee, there feel that she is being unduly pressured to concede her claim, here give up his right to refuse to opt out of the 48 hour week, then victimisation may be made out.  

32.	I return to Martin v Devonshire and adopt the President’s observation that there will be cases where the reason for the act complained of was not the employee’s protected act but some feature of it which could properly be treated as separable (para. 22).

33.	As to detriment, the test is that set out in Shamoon, as the Employment Judge correctly stated at para. 15, second decision.

Analysis
34.	Mr Mitchell puts the case for upholding the Employment Judge’s decision with attractive simplicity.  The Claimant suffered a detriment, in that he was refused overtime on a rest day because he had not signed the opt-out agreement.  That applied unreasonable pressure on him to sign the opt-out agreement if he wished to work the overtime.  As the Employment Judge found (second decision, para. 39) it was clear from the evidence of Mr Robinson that the sole reason for the withdrawal of rest day working was the Claimant’s refusal to opt out.  In any event, on the facts found there was no prospect of this Claimant exceeding 48 hours work in a week, allowing, if necessary, for the 26 week averaging.  The complaint was made out.  

35.	Mr Bailey focuses on the Respondent’s qualified duty under reg. 4(2), a breach of which would lead to a potential criminal sanction.  The Employment Judge found that the policy adopted by the Respondent was reasonable for the purposes of reg. 4(2).  The reason why Mr Robinson withdrew rest day working in September 2009 was simply the implementation of that reasonable policy; it was not action designed to penalise him for not opting-out, nor was its aim to force him to opt out.  The act of withdrawing rest day working pursuant to the Respondent’s reasonable policy designed to comply with its qualified duty under reg. 4(2) was that of an honest and reasonable employer and defeats this claim – see Lord Neuberger in Derbyshire, para. 69.

36.	In my judgment the submissions of Mr Bailey are to be preferred.  It seems to me that the Employment Judge fell into error in two respects; first she considered that the discrimination principles (set out above) did not apply in this case and secondly, that her finding of reasonableness in relation to the Respondent’s policy was relevant to remedy only and not liability.

37.	On my analysis of the facts found the reason why Mr Robinson withdrew rest day working was because he was required to enforce the newly resurrected policy; a policy which was reasonable and necessary to ensure compliance with the Respondent’s statutory duty under reg. 4(2) WTR.  That aim may properly be separated from the underlying refusal by the Claimant to sign the opt-out agreement.  The necessary link between the Claimant’s protected act and the withdrawal complained of is not made out in these circumstances, regardless of whether that withdrawal amounted to a detriment from the employee’s viewpoint.

Disposal
38.	Both parties invite me to decide the case, exercising my powers under s.35(1) ETA 1996, if as I do, I allow the Respondent’s appeal.  That seems to me to be a proportionate course to take; the primary facts have been found and it is consistent with the modern approach of the CA; see Buckland v Bournemouth University [2010] IRLR 445, paras. 57 – 58 per Jacob LJ.  

39.	Accordingly, I allow this appeal and for the reasons given I shall dismiss this complaint.

Postscript
40.	Whilst I have sought to determine this appeal by application of the law as I understand it to the facts found I am also satisfied that the result accords with good sense and resolves what Mr Bailey contended was a possible tension between the employer’s duty under reg. 4(2) and the protection to employees afforded by s.45A.  The Directive is a Health and Safety measure, implemented by the WTR.  It would be a strange result if this employer were to be condemned for adopting a reasonable policy designed to ensure that its employees who exercised their right not to opt out of the 48 hour week maintained that right.