Appeal No.	 EAT/0599/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 October 2001

Before
HIS HONOUR JUDGE J R REID QC
MISS A MACKIE OBE
MR D NORMAN

MR G HARTLAND	APPELLANT

DUDLEY GROUP OF HOSPITALS NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING EX PARTE

Revised

	APPEARANCES

For the Appellant	MR G HARTLAND
(The Appellant in person)

MR R THACKER
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	

HIS HONOUR JUDGE J R REID QC

1	This is an appeal by Mr Hartland from the decision of an Employment Tribunal held at Birmingham on 29 January 2001 whereby they held that Mr Hartland’s employer, the Dudley Group of Hospitals NHS Trust, had not caused him any detriment.  It was a unanimous decision of the Tribunal that Mr Hartland had not suffered detriment contrary to Section 45(A) of the Employment Rights Act 1996 as there had been no contravention of the Working Time Regulations either proposed or presently relating to him.

2	The application was brought by Mr Hartland alleging that he had been victimised as a result of the Working Time Regulations and also subject to a breach of contract.  The appeal before us in which Mr Hartland has conducted himself, if I may say so, with considerable skill and restraint, has turned on the decision of the Tribunal that the Working Time Regulations had been properly implemented in relation to Mr Harland.  The difficulty that Mr Hartland faced, which I fear he never overcame, was that he had to persuade us that what the Tribunal had done showed an error in law.  

3	The way in which he put his case at the end of his submissions, in answer to questions from Mr Norman, was that although he accepted that the Tribunal could only follow the guidelines laid down by the law, his (Mr Hartland’s) situation was unique, and that he thought that the law was wrong.  What underlay Mr Hartland’s dissatisfaction, first of all with his employer and then with the decision of the Employment Tribunal, was the use of a procedure set out in paragraphs 4 and 6 of the Working Time Regulations by which the relevant number of hours was determined by reference to an artificially fixed reference period.  Mr Hartland’s view was that his situation was unique because he worked a 9 day cycle and it was therefore inappropriate for his working time to be calculated by reference to calendar weeks.  A repeated theme in his submissions was that it was inappropriate to try and deal with his particular situation by reference to calendar weeks.  

4	The difficulty that he has is that the averaging procedure which is to be found in the Working Time Regulations was introduced precisely to deal with the fact that there are a great number of workers whose work pattern does not fit neatly into ordinary calendar periods of a week or a month.  It was for that reason that Parliament decided, in trying to implement the Working Time Directive, that there should be a calculation formed by reference to a reference period of 17 weeks.  That reference period is just within the maximum reference period permitted under the Working Time Directive. 

5	The position, as we see it, is simply this.  That, as Mr Hartland accepted, the Tribunal applied the law as it in fact stands.  The Tribunal did not, and could not, make an exception for Mr Hartland’s situation, which he wrongly perceives to be unique.
 
6	We entirely appreciate that Mr Hartland feels hard done by.  We take the view that he is very right to be concerned that in his responsible and skilled job he is able to maintain the quality and service which is appropriate, but in our judgment it is clear that the Tribunal applied the law as it stands, correctly.  It was not open to the Tribunal, nor is it open to us, to create an exception to the law as laid down by Parliament.  If, as Mr Hartland thinks, the law is wrong, then there are means by which the amendment of the law can be procured.  The Employment Appeal Tribunal is not, whatever else it may be, a body for correcting what are perceived by others to be errors made by Parliament.  

7	Mr Thacker, of ELAAS, in response to a request from the Tribunal drew our attention to specific passages and articles in the Working Time Directive.  He suggested that the only method by which Mr Hartland might achieve what he seeks to achieve is by suggesting that the Working Time Directive has not been properly introduced into English law and that the Working Time Regulations do not accurately reflect what is required by the Directive.

8	We were unable to see that there was any inconsistency.  In any event, if Mr Hartland wished to argue that there were, that would be a matter which he would have to deal with by other proceedings, and not in the course of this appeal.  It follows that, in our judgment, although we are grateful to Mr Hartland for the moderate and skilful way in which he has put his case, no error of law on the part of the Employment Tribunal has been demonstrated and the appeal must be dismissed.  There is no basis on which it could go forward to a Full Hearing.