Robertson v British Gas Corporation
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ACKNER,LORD JUSTICE KERR,SIR DAVID CAIRNS |
| Judgment Date | 17 December 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J1217-3 |
| Docket Number | 82/0505 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 December 1982 |
[1982] EWCA Civ J1217-3
Lord Justice Ackner
Lord Justice Kerr
and
Sir David Cairns
82/0505
Plaint Nos. 8201284 and 8201260
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE STAINES COUNTY COURT
(HIS HONOUR JUDGE WAKLEY)
Royal Courts of Justice.
MR. STEPHEN SEDLEY (instructed by Messrs. L. Bingham & Co.) appeared on behalf of the (Plaintiffs) Respondents.
MR. MICHAEL HOWARD, Q.C. (instructed by the Solicitor to the North Thames Gas Region of British Gas Corporation) appeared on behalf of the (Defendant) Appellant.
Mr. Robertson and Mr. Jackson had for a number of years been employed, and still are employed, by the British Gas Corporation (the appellants in this case) as meter readers/collectors. They brought proceedings in the Staines County Court this year each claiming arrears of wages, in Mr. Robertson's case £425 and in Mr. Jackson's case £395. The pleadings started with a three-sentence claim, but they were amended so as to disclose that what was being in fact sued for was in each case the amount of one month's incentive bonus pursuant to an incentive bonus scheme.
Prior to discovery taking place, the respondents Mr. Robertson and Mr. Jackson contended that their entitlement to these sums depended upon an implication that there was incorporated into each of their contracts a bonus scheme, firstly by conduct in that at all material times until the default complained of they worked and the Gas Board calculated their salaries according to the terms of the bonus scheme last agreed and the parties thereby mutually consented at each stage to the appropriate variation of the contract, and the other basis of implication was to give business efficacy to the contracts of employment. The defence was a denial that the bonus scheme was any part of the contract, that the scheme had been validly determined by six months' notice, and as from the beginning of January there was no obligation to pay the bonus—hence the claim which was for the month of January.
The bonus, of course, is a sizeable one, having regard to the figures which I have already mentioned and the fact that those figures relate only to one month. The reason for the bonus being a large one is because the salaries themselves were low, the bonus representing something like one-third of the total wages hitherto paid.
When the matter came before the learned county court judge, discovery caused both parties to shift their ground to some extent, and as a result it was conceded by the plaintiff workers that their individual contracts of employment did not have by implication the bonus scheme implied into them, but they claimed that it was an express term of their contracts that the bonus scheme be imported.
It was common ground that the collective schemes which were made between the appellants and the trade union had in fact no legal force, and thus they could only be binding in so far as they had been incorporated in the terms of the individual contracts.
The issue before the county court judge centred upon what was to be taken as the contract. On the one hand it was said, and said by the plaintiffs, that the contract was to be found in letters written by the employers (the Gas Board) in 1970 setting out the terms upon which each of the plaintiffs had been appointed. The Gas Corporation said that the terms of the contract were in each case to be found in the latest statement made by the Gas Corporation pursuant to their obligations under the Contracts of Employment Act 1972 as amended by the Employment Protection Act 1975 which placed a statutory obligation upon employers within a very limited time to inform their employees of the terms of their contract.
The learned judge decided that the contract in this case was to be found so far as Mr. Jackson was concerned in a letter of the 19th October, 1970, and it was common ground that a similar such letter had been written about the same time to Mr. Robertson; and he concluded that that letter imposed an obligation upon the appellants to pay the bonus which was operative between the parties before the six months' notice of cancellation had been given by the Gas Corporation to the trade union in June of last year.
The notice of appeal takes a stand quite clearly on the contention that the contract is to be found in the latest statement by the Corporation pursuant to the statutory obligations to which I have referred. The last such statement in relation to Mr. Jackson was on the 1st September, 1977, and it was common ground that a similar such statement was provided to Mr. Robertson.
Mr. Howard's submission quite simply is this, that one starts when considering what was the contract with the statements provided pursuant to the statutory obligation, and from there one looks for any other material if it exists, but only on the basis that the material provided pursuant to the statutory obligation raises the strongest evidence and can only be displaced if there is stronger evidence available to the contrary.
The status of the notice provided pursuant to the Contracts of. Employment Act 1972 as subsequently amended has been most recently considered by the Employment Appeals Tribunal in the case of System Floors (U.K.) Ltd. v. Daniel (1982) Industrial Cases Reports 54 where this was said by the President Mr. Justice Browne-Wilkinson at page 57. He referred to the authority which existed in the Divisional Court, Turriff Construction Ltd. v. Bryant (1967) 2 Knight's Industrial Reports 659, where Lord Parker C.J. at page 662 said this:
"It is, of course, quite clear that the statement made pursuant to section 4 of the Act of 1963"—that is, the initial Act—" is not the contract; it is not even conclusive evidence of the terms of a contract."
The President went on to say:
"It seems to us, therefore, that in general the status of the statutory statement is this. It provides very strong prima facie evidence of what were the terms of the contract between the parties, but does not constitute a written contract between the parties. Nor are the statements of the terms finally conclusive: at most, they place a heavy burden on the employer to show that the actual terms of contract are different from those which he has set out in the statutory statement."
The President distinguished, and in our view properly distinguished, the case in this court of Gascol Conversions Ltd. v. Mercer (1974) Industrial Cases Reports 420, which was a case in which a new contract was negotiated and the offer was a written offer given in the statutory form and was accepted by a written statement to that effect with the result that there was between the parties a written contract to be found on the employers' side with a written offer and on the employee's side with a written acceptance. The earlier case of Camden Exhibition & Display Ltd. v. Lynott (1966) 1 Queen's Bench 555 was not referred to in the course of that judgment, but this is understandable because in that case there was no other...
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