Eagland v British Telecommunications Plc
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PARKER,LORD JUSTICE LEGGATT,SIR DAVID CROOM-JOHNSON |
| Judgment Date | 30 April 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0430-2 |
| Docket Number | 92/0403 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 April 1992 |
[1992] EWCA Civ J0430-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(Mr. Justice Wood)
Royal Courts of Justice
Lord Justice Parker
Lord Justice Leggatt
and
Sir David Croom-Johnson
92/0403
MR. J. MELVILLE-WILLIAMS QC and MR. STEPHEN BEDEAU (instructed by Harehills & Chapeltown Law Centre, Leeds appeared on behalf of the Appellant (Appellant).
MR. ELDRED TABACHNIK QC and MR. GRIFFITH JONES (instructed by Mr. Colin R. Green, The Solicitor and Chief Legal Adviser, British Telecommunications plc) appeared on behalf of the Respondent (Respondent).
This appeal concerns the application of certain sections of the Employment Protection (Consolidation) Act 1978, as amended, in somewhat unusual circumstances.
Section 1 of that Act, so far as immediately relevant, provides;
"(1) Not later than 13 weeks after the beginning of an employee's employment with an employer the employer shall give to the employee a written statement in accordance with the following provisions of this section.
(2) An employer shall in a statement under this section—
(a) identify the parties;
(b) specify the date when the employment began;
(c) specify the date on which the employee's period of continuous employment began (taking into account any employment with a previous employer which counts towards that period)."
All those matters are, on their face, mandatory matters.
Subsection (3):
"(3) A statement under this section shall contain the following particulars of the terms of employment as at a specified date not more than one week before the statement is given, that is to say—
(a) The scale or rate of remuneration, or the method of calculating remuneration,
(b) the intervals at which remuneration is paid (that is, whether weekly or monthly or by some other period).
(c) any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours),
(d) any terms and conditions relating to—
(i) entitlement to holidays, including public holidays,…
(ii) incapacity for work due to sickness or injury, including any provision for sick pay, and
(iii) pensions and pension schemes."
It is to be noted that whereas (a) and (b are apparently mandatory, (c) and (d) are not so.
Sub-paragraph (e):
"(e) the length of notice which the employee is obliged to give and entitled to receive to determine his contract of employment, and
(f) the title of the job which the employee is employed to do;"
[(e) and (f) both being mandatory].
There follows a proviso which I need not read.
(4) Subject to subsection (5) and section 2A(1) every statement given to an employee under this section shall include a note—
(a) specifying any disciplinary rules applicable to the employee, or referring to a document which is reasonably accessible to the employee and which specifies such rules.
(b) specifying, by description or otherwise—
(i) a person to whom the employee can apply if he is dissatisfied with any disciplinary decision relating to him; and
(ii) a person to whom the employee can apply for the the purpose of seeking redress of any grievance relating to his employment and the manner in which such application should be made."
(c) and (d) I need not read. Section 2(1) provides:
"If there are no particulars to be entered under any of the heads of paragraph (d) of subsection (3) of section 1 [all of which I observe are non-mandatory], or under any of the other provisions of section 1(2) and (3), that fact shall be stated."
Section 2(1) thus expressly recognises that there may not be terms to be inserted under (d). It also recognises that there may be no terms under one or more of the other provisions of section 1 subsection (2) and (3). That on the face of it is somewhat puzzling.
Section 11 of the Act then specifies what is to happen in the event that section 1 is not fully complied with. It provides in subsection (1):
"Where an employer does not give an employee a statement as required by section 1 or 4( 1) or 8 the employee may require a reference to be made to an industrial tribunal to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the relevant section."
Subsection (2).
"Where—
(a) a statement purporting to be a statement under section 1 or 4(1), or
(b) a pay statement or a standing statement of fixed deductions purporting to comply with section 8 or section 9(1) has been given to an employee, and a question arises as to the particulars which ought to have been included or referred to in the statement so as to comply with the requirements of this Part,
either the employer or the employee may require that question to be referred to and determined by an industrial tribunal."
I need not read subsections ( 3) or (4).
Subsection 5:
"Where, on a reference under subsection (1) an industrial tribunal determines particulars as being those which ought to have been included or referred to in a statement given under section 1 or 4(1) the employer shall be deemed to have given to the employee a statement in which those particulars were included, or referred to, as specified in the decision of the tribunal."
Subsection 6:
"On determining a reference under subsection 2(a) an industrial tribunal may either confirm the particulars as included or referred to in the statement given by the employer, or may amend those particulars, or may substitute other particulars for them, as the tribunal may determine to be appropriate; and the statement shall be deemed to have been given by the employer to the employee in accordance with the decision of the tribunal."
The appellant was first engaged by the respondents as a part-time cleaner in 1980. No statement was given under section 1 of the Act in respect of her engagement, nor was anything purporting to be a statement provided until 27th July 1987. This was because the respondents regarded the appellant as being a self-employed contract cleaner and not an employee. It is, however, now common ground that from 1980 onwards she worked as a part-time cleaner under a contract which was renewed every year and which specified, amongst other things, her hours of work and her hourly rate of pay.
On 31st October 1986, after the appellant had worked for some six years, she made an application to an industrial tribunal under section 11(1). In their response the respondents initially accepted that she was entitled to such a statement, but later changed their position and contended that she was not an employee and therefore the tribunal had no jurisdiction. That question, and that question alone, was dealt with by an industrial tribunal in May 1987 as a preliminary issue and was decided in favour of the appellant. The position was thus reached that she had been an employee, whatever anybody may have thought, throughout the period under a series of contracts each of which followed the other and each of which provided for an increased remuneration by a small amount.
Before the preliminary issue had been decided, the respondents had offered the appellant employment by a letter dated 30th December 1986, but that offer she had refused. As a result of the first decision, on the 27th July 1987, the respondent sent to the appellant a statement purporting to be a statement in compliance with the provisions of section 1 of the Act. That reads as follows:
"Following the Industrial Tribunal determination that you are employed by British Telecommunications plc, please accept this letter as a written statement of the terms and conditions under which you are employed by British Telecommunications as a domestic cleaner.
1. Your employment began on the 31st March 1980.
2. There is no continuous period of employment with a previous employer.
3. Your rate of pay is £2.00 per hour.
4. Your hours of work are 30 hours per week excluding meals.
5. You are paid weekly.
6. You are not paid during holidays.
7. You will be entitled to statutory sick pay during periods of incapacity for work through sickness.
8. You are not a member of any pension scheme.
9. You are entitled to one week's notice of termination of employment for each year of continuous service, to a maximum of twelve weeks.
10. There are no disciplinary rules or grievance procedure applicable to your employment.
A copy of this letter will be sent to your representative, Mr. Hawley of the Harehills and Chapletown Law Centre."
To that letter the appellant replied;
"Regarding your letter of the 27th July as a written statement of terms and conditions under which you state I am employed, I only agree to five of them. The numbers are as follows:
1, 2, 4, 5 and 9.
The ones I disagree with are as follows:
3, 6, 7, 8 and 10."
'3' was the hourly rate of pay. That is not now pursued, it being accepted that the hourly rate of pay which had been specifically agreed was £2 per hour. '6' is the question of holiday pay; '7' the question of statutory sick pay; '8' the pension scheme and '10' the disciplinary rules.
The matter came again before an industrial tribunal which, on the 11th September, made the following decision:
"…the terms and conditions of the applicant's contract of employment with the respondents are those set out in the letter dated 27th July 1987 to which shall be added a note that the applicant can apply orally to the technical officer in charge of the exchange in respect of any disciplinary...
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