Appeal No.  UKEAT/0280/10/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 November 2010

Before
HIS HONOUR JUDGE McMULLEN QC
MS H PITCHER
MS P TATLOW

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

SUMMARY
WORKING TIME REGULATIONS
S.45A detriment

The Claimant refused to forgo his protection against working more than 48 hours under WTR and so was denied every opportunity to work on rest days for overtime.  The Employment Tribunal judgment was set aside and remitted to the same Judge to determine the relationship between the Respondent’s absolute duty to allow the Claimant protection and its qualified duty to take reasonable steps to ensure it did not breach the duty, when considering s45A.

HIS HONOUR JUDGE McMULLEN QC

1.	This case is about detriment suffered for asserting the right to a 48‑work week under the Working Time Regulations.  HHJ Peter Clark exercised his discretion under section 28(4) of the Employment Tribunals Act 1996 and provided for a three‑person bench to hear this appeal from a Judge alone below.  So, this is the Judgment of the court to which all members, appointed by statute for their diverse specialist experience, have contributed.  We will refer to the parties as the Claimant and the Respondent.

Introduction
2.	It is an appeal by the Respondent in those proceedings against the Judgment of Employment Judge J Nash, sitting alone at London (South) registered with Reasons on 12 April 2010.  The parties continue to be represented respectively by Ms Karen Minto and Mr Russell Bailey, both of counsel.  The Claimant claimed he had been subjected to a detriment for having refused to forego his right to a 48‑hour week contrary to the Employment Rights Act 1996 protections for asserting rights, see section 45A.

3.	The Respondent contended in a number of respects that the right was not engaged, but, if it were, was not breached.  The essential issue for the Employment Tribunal was to determine the reason for the decisions made by the Respondent and the effect upon the Claimant by way of detriment.  The Employment Judge decided in the Claimant’s favour and that he had been subjected to a detriment on the ground that he refused to forego his right to the 48‑hour week.  The Respondent appeals against that Judgment.

4.	Directions sending this to a full hearing were given by Judge Clark.  He regarded the matter as invoking complicated issues of European law, but as we have found in relation to the arguments today, this case is entirely based on domestic law.  He would, by definition, have considered there were reasonable prospects of success in sending it to a full hearing.

The legislation 
5.	The relevant provisions of the legislation are not in dispute.  They are as follows: protection against a detriment by reference to the WTR is provided by section 45A of the Employment Rights Act 1996 which is in the following terms:

“(1) A worker has the right not to be subjected to any detriment by any act.... by his employer done on the ground that the worker -
(b) refused ... to forego a right conferred on him by those Regulations.”

6.	The right asserted arises under regulations 4 and 5 of the Working Time Regulations 1998 as follows:

“4 Maximum weekly working time
(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.
(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 paragraph (1) is complied with in the case of each worker employed by him in relation to whom it applies and shall keep up‑to‑date records of all workers who carry out work to which it does not apply by reason of the fact that the employer has obtained the worker’s agreement as mentioned in paragraph (1).
5 Agreement to exclude the maximum
(2)  An agreement for the purposes of Regulation 4 -
      (a) may either relate to a specified period or apply indefinitely ...”

The facts
7.	Nor are the facts in dispute.  The Respondent is a very substantial operator of buses in London and nationally. The Claimant has been employed since 1998.  The Respondent introduced a policy relating to working hours.  There is a relationship between drivers’ hours under European‑based regulations and working time under the domestic WTR.  In 2008 a policy was introduced which provided that additional working time, taking the form of working of rest days, would not be made available to anyone who did not sign that he or she would forego the rights given under the WTR.  Broadly speaking, this is a right not to work more than 48 hours a week in any role in a 26‑week period.

8.	The practice of the Claimant had been to work four or five such rest days in a year.  After the policy was introduced in 2008 it was not implemented on the ground and the Claimant continued as before.  On 10 August 2009 a notice was posted on the staff notice board in the following terms:

“STAFF NOTICE
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....”

9.	Shortly thereafter the Claimant registered his dissatisfaction with that and he said this:

“[…] As I have no intention of breaching the op[sic.] out agreement, you therefore cannot penalise me in the shape of refusing or not permitting me to work one rest day a week.  Again you are attempting to break the Employment Laws, contracts between the employer and employee and you threaten blackmail if the employee does not sign it.
I have consulted my daughter who is University graduate in law, Union solicitors in employment laws and also Roger Dillon, who I do believe you know.  I am backed 100% by these people in what I am saying to you in the respect that you cannot blackmail or force someone into signing something they do not have to sign.
I hereby put you on notice on the above and that I will take legal action against Arriva if I am penalised in any way, shape or form.”

10.	The policy manifested itself in practical terms very soon thereafter, for the Claimant was rostered to work one additional rest day, at his choice, and was pulled off it the night before.  The Employment Tribunal found that the policy which was in operation was to obviate a risk to the Respondent in respect of drivers who had not, as it put it, opted out of the 48‑hour week.  This was to do with complicated arrangements for drivers’ hours as we have suggested.  The Tribunal accepted that the Claimant had suffered displeasure at losing the working days and that this was substantial and caused him actual loss.

11.	The Judge then considered what the reason for the loss was and, as the Tribunal concluded, it was agreed on all hands that it was because of his failure to forego his rights.  The Judge said this:

“21. The Tribunal found that it was agreed by all the witnesses that the Claimant did not sign an opt out agreement and as a direct consequence he lost out on the opportunity to work working rest days.  The Tribunal therefore found that the Claimant did suffer a detriment.”

12.	Thereafter, the Judge considered what was to her a straightforward matter of causation and said this:

“22. The Tribunal then considered whether the Claimant had been subjected to this detriment on the prohibited ground.  The Tribunal was invited to consider this question in one of two ways.  The Claimant’s case was that the Claimant had refused to sign the opt out and this was the reason for the detriment.  The Respondent’s case was that the reason for the detriment was the employer’s duties under Regulation 4 of the Working Time Regulations.  The Tribunal noted that although both parties’ Counsel had made reference to reasonableness, the only reference to reasonableness in the statutes was under Regulation 4 of the Working Time Regulations and this referred to the Respondent’s duties in respect of controlling working hours and not to any question of detriment.
23. The Tribunal therefore concluded, as a straightforward matter of causation, that the detriment was caused by the Claimant’s failure to sign the opt out.  It was clear from the evidence of Mr Robinson that the sole reason for the withdrawal of working worked rest days was the Claimant’s refusal to opt out.  The Tribunal therefore concluded that the detriment had been applied on the ground of the Claimant’s refusal to forego his rights contrary to section 45A.”

13.	That, therefore, gave the Tribunal the satisfaction that his case met the terms of section 45A.  Remedy was then discussed and the Tribunal concluded that, since the Claimant would not have taken the additional overtime on the days in question and it was entirely voluntary for him, it would not be just and equitable to award him any compensation.  That decision is not the subject of any appeal.  The basis of the appeal is that the Tribunal erred in law in its conclusion on breach of the Act.

The Respondent’s submissions
14.	Mr Bailey submits that the Tribunal has failed to engage in the tension between regulations. Regulation 4(1) provides for an unqualified obligation to be placed upon the Respondent, that is that the worker should not exceed 48 hours in the relevant period.  There is a qualified obligation under regulation 4(2).  In this case the Respondent had a policy described not unfairly by Ms Minto as a blanket policy which was to exclude those who had refused to forego their right to a 48 hour week from the opportunity to work on an additional day.  Mr Bailey contends that the Tribunal has failed to deal with what effectively is a clash which must be accommodated between the two duties in regulations 4(1) and 4(2).

15.	The Tribunal, having found that there was to be no compensation under section 49(1)(b), should have found that there was no detriment to the Claimant since it was at all times elective in the hands of the Claimant and his colleague as to whether or not to forego those rights.

The Claimant’s case
16.	Ms Minto for the Claimant puts her case as simply as did the Judge.  This is a straightforward case of finding the reason why the decision was made to exclude the Claimant from consideration for overtime and it was, as those factual findings make clear, the decision by the Claimant not to forego his rights and sign the opting out agreement.  She made no clear argument to us as to the relationship between the absolute and the qualified duties under respectively regulations 4(1) and 4(2), but this, in our judgment, is relevant.

17.	Ms Minto submitted that the Tribunal applied the correct test for detriment, looking at it subjectively with a trace of reasonableness as seen in Shamoon v Chief Constable of the RUC [2003] IRLR 285.

Discussion and conclusions
18.	At the end of Mr Bailey’s submissions he contended that the Tribunal, in dealing with what his clients say is a reasonable policy, failed to make a Judgment which was Meek compliant (Meek v City of Birmingham District Council [1987] IRLR 250 CA).

19.	In our judgment the causation in this case is clear and plainly demonstrated by the agreed facts.  Not only is it background but it is the reason for the decision to exclude the Claimant from consideration of additional overtime that he did not sign the opting out agreement.  The question is whether that is sufficient or whether there must be consideration of regulation 4(2) which imposes a qualified duty on the Respondent to take steps to ensure the regulations are not breached in respect of a person who is protected by them.

20.	There is force in this argument.  This case, Mr Bailey tells us, is being keenly observed not only by his client, the major provider in this field, but by many of his client’s competitors.  It is not sufficient simply to resolve the matter on an individuated basis as to whether or not an individual driver suffered or did not suffer detriment.  We agree with that and, for clarity, have decided this matter should be referred back to the Employment Judge.  It is, after all, the standard relief in a case where the reasons are not Meek compliant.  The Judge is somewhat elliptical when she describes the reference to reasonableness in paragraph 22 of her Judgment, which is cited above.

21.	Mr Bailey is probably right when he says that the Judge seems to have excluded from her consideration reasonableness under regulation 4(2).  As a matter of law, these Regulations must be read together for there is a relationship between the two.  It is for an Employment Tribunal, acting as an industrial jury (see Tilson v Alstom Transport [2010] All ER (D) 281 CA) and not us to fill that gap.  What is the view of the Employment Tribunal 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?

22.	We have canvassed the views of counsel as to remission.  We apply the principles in Sinclair Roche & Temperley v Heard [2004] IRLR 763.  We have upheld much of the Judge’s reasoning.  It is proportionate that she deal with it.  She has noted that there were arguments about reasonableness and we have been told there was considerable cross‑examination about reasonableness.  This will go back to the same Judge.  We have confidence in this Judge in the remainder of her Judgment, the only bit missing being the connection between regulations 4(1) and 4(2) and section 45A so far as they are directed to reasonableness.  It is proportionate and the parties should not consider that the Judge will approach this in an unprofessional manner on the limited remission we make.  The appeal is allowed.