Mrs M Perry And Mrs K Hamilton Against A Decision Of The Employment Appeal Tribunal
| Jurisdiction | Scotland |
| Judge | Lord Clarke,Lord McGhie,Lord Drummond Young |
| Neutral Citation | [2013] CSIH 35 |
| Court | Court of Session |
| Published date | 19 April 2013 |
| Date | 26 February 2013 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Clarke Lord Drummond Young Lord McGhie | [2013] CSIH 35 OPINION OF THE COURT delivered by LORD CLARKE in the appeal under section 57(1) of the Employment Tribunal Acts 1996 by MRS M PERRY and MRS K HAMILTON Appellants; against A decision of the Employment Appeal Tribunal dated 18 April 2012 communicated to the appellants on 9 May 2012 _______________ |
Respondents: Cameron; TC Young, Solicitors, Edinburgh
26 February 2013
[1] This appeal was heard by this court on 26 February 2013. We were able to give our decision at the conclusion of the hearing which was to allow the appeal. We advised parties that we would provide written reasons in due course which is what we now do.
[2] The appellants, in this appeal against a decision of the Employment Appeal Tribunal, had both brought claims before the Employment Tribunal for certain payment in terms of section 17 of the National Minimum Wage Act 1998. Their claims were against their employers Turning Point Scotland ("the respondents") and were based on a dispute as to whether they had been underpaid having regard to the aforementioned legislation, by virtue of a failure by the respondents, to make payment in respect of sleepover times at work. The appellants' claims were lodged in the Tribunal on 13 and 14 January 2011. The respondents contested these claims.
[3] An order was made by the Employment Tribunal on 1 March 2011 to the effect that the two sets of proceedings should be conjoined. On 22 March 2011 the respondents applied to the Tribunal for an order asking the appellants to respond to certain questions. These questions were essentially asking each of the appellants in each case to provide (a) a breakdown of the 60 hours or 66 hours she alleged to have worked and a list of dates, and times when she claimed she was disturbed during her sleepover shifts, (b) the basis upon which she calculated she was paid less than the national minimum wage, (c) the basis upon which she asserted that she had a contractual claim under the Employment Rights Act 1996 and (d) the nature of the claim being made by the appellants for breach of contract under the Employment Tribunals (Extension of Jurisdiction Order). Neither of the appellants opposed the granting of such an order which was issued on 31 March 2011. They responded to the order on 14 April 2011. On 6 May 2011 the appellants' representative wrote to the Tribunal indicating that they had been instructed by both appellants to withdraw their claims.
[4] On 18 May 2011 the respondents wrote to the Tribunal applying for an order for expenses. They provided certain materials in support of this request. One of the items which they forwarded to the Tribunal was a spread-sheet which they claimed to show that at all times both appellants had been paid in excess of the national minimum wage for all hours worked, even if sleep-over hours were taken into account. The Tribunal then fixed an expenses hearing. The appellants had taken a competency point against the granting of expenses. The Tribunal found in their favour in that respect. On appeal to the Employment Appeal Tribunal, that Tribunal found against the appellants on the competency point. The appellants did not seek, in the present appeal proceedings before this court, to have the competency point revisited. The Employment Tribunal had gone on to consider the merits of the respondents' claim for expenses and, in the event, found against the respondents in that respect. The Employment Appeal Tribunal, on the other hand, held that the respondents should succeed on the merits of their application for expenses and remitted the case back to the Employment Tribunal for that purpose. The appellants contended before this court that the Employment Judge had misdirected himself in determining the question of the merits of the respondents' application for expenses in their favour.
[5] The Employment Tribunal had had brought to its attention by the respondents two previous EAT decisions reported as South Manchester Abbeyfield Society Ltd v Hopkins and another [2011] ICR 254, which had been issued on 30 November 2010, the days for appealing against which expired on or about 14 January 2011. Those decisions addressed the question of when, if at all, and to what extent, sleep-over periods were governed by the national minimum wage legislation. The respondents also claimed that the facts upon which the appellants proceeded were erroneous. It ought to have been clear from the outset to the appellants that their claims had no prospect of success. At paragraph 35-37 of his judgment, the Employment Judge, in determining the merits of the application for expenses by the respondents stated:
"I did not hear any evidence on this case and neither party sought to lead evidence. The claimants lodged the spreadsheets but there was no formal admission from the claimants that these spreadsheets were correct. The claimants' averments were that one had worked 66 hours a week and the other 60 hours per week. The spreadsheets showed less. There is no doubt that had these spreadsheets been available at the full hearing and been accepted as correct, the claimants may have had some difficulty proving that part of their case which indicated that they had been paid less than the minimum wage. This does not mean the claim was misconceived. The most it can be said is that if the respondents' evidence were preferred to the claimants' averments the claimants would have lost.
As at the date of withdrawal the claimants' claim of breach of contract was still not specified. The claimants themselves had made this point in both their ET1s. They required further information. I never saw the claimants' contract and it might well be that the claimants believed that a claim that sleepovers be treated as core working time might result in them being entitled to some additional contractual payment even if the spreadsheets were correct in showing that they had been paid over the national minimum wage amount when all hours worked (including sleepovers) were taken into account.
On the basis of the information before me it was therefore not possible for me to come to any view as to whether the claimants would in fact have lost their claim had it gone to a hearing. There was evidence which, if accepted, would have defeated part of their claim. The part of the claim that alleged a failure to pay national minimum wage (whether categorised as unlawful deductions from wages or breach of contract) would have failed if this evidence had been accepted. I cannot really say anything about any other part of this breach of contract claim as I never saw any specification of it".
The Employment Judge went on to point out that the area of law upon which the appellants were relying, at least to some extent, was complex and in a state of flux. The Employment Judge observed, at paragraph 38:
"having been consulted, the claimants' solicitors were in the position of requiring to lodge a claim within a fairly tight timescale. That is not unusual in the Employment Tribunal claims. Had they delayed lodging a claim because the law was in a state of flux then the...
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