Appeal No. UKEAT/0293/11/RN
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At
the Tribunal
On
2 December 2011
Judgment handed down on 21 December 2011
Before
HIS
HONOUR JUDGE PETER CLARK
(SITTING ALONE)
ARRIVA
LONDON SOUTH LTD APPELLANT
MR
N G NICOLAOU RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
VICTIMISATION DISCRIMINATION – Interim relief
WORKING TIME REGULATIONS
Whether employee who had not opted out of 48 hour working week (WTR
reg. 4(1)) suffered detrimental treatment when refused the opportunity to work
voluntary overtime on a rest day.
Consideration of s.45A ERA and relevant
discrimination/victimisation cases.
Held: complaint failed. The reason why he was
refused rest day working was not because he refused to sign the opt out but in
order to implement a policy, found by the Employment Judge to be reasonable, to
ensure compliance with the qualified duty on the employer imposed by reg. 4(2) WTR.
HIS HONOUR JUDGE PETER CLARK
Introduction
1.
The Claimant, Mr Nicolaou, presented a complaint of detrimental
treatment contrary to s.45A Employment Rights Act 1996 (ERA) against his
employer, the Respondent Arriva London South Limited, to the London South
Employment Tribunal on 17 December 2009. The claim was resisted and came on
for hearing before Employment Judge Nash sitting alone on 3 March 2010. By a
Judgment with Reasons promulgated on 12 April 2010 that Judge upheld the
complaint but made no award of compensation (the first decision). Against the
first decision the Respondent appealed (EAT/0280/10/DA). That appeal was heard
before a full division of the EAT (HHJ McMullen presiding) on 22 November 2010;
the EAT allowed the appeal and remitted the matter to the same Employment Judge
for further consideration. We are told by Mr Bailey, who has appeared for the
Respondent throughout, that the remission took the following form. The case
was listed for a telephone Case Management Discussion, I assume on 10 March
2011. At that telephone hearing Mr Bailey represented the Respondent and the
Claimant’s solicitor (not Ms Minto of counsel) represented his interests.
Thereafter the Employment Judge considered the matter in light of the EAT’s
Judgment. By her Judgment with Reasons dated 20 April 2011 (the second
decision) the Employment Judge arrived at the same determination as in her
first decision, namely that the complaint was upheld but no compensation was
ordered.
2.
Against the second decision the Respondent again appealed. The appeal
was permitted to proceed to a full hearing on the paper sift by Bean J. That
is the appeal now before me (the second appeal). By his Answer the Claimant
sought to raise a cross-appeal. However, he was out of time for doing so and
the Registrar refused to extend time. It follows that the Claimant’s
cross-appeal does not fall for determination by me, although I shall refer to
the point raised in the cross-appeal in due course. I heard oral argument on 2
December 2011 and then reserved my judgment.
The statutory framework
3.
The Working Time Regulations 1998 (WTR) were passed to implement
into domestic law the Working Time Directive (93/104/EC, now consolidated as
Directive 293/88/EC). Article 6 of the Directive provides that each Member State shall take the measures to ensure that, in keeping with the need to protect
the safety and health of workers, the average working time for each seven-day
period, including overtime, does not exceed 48 hours.
4.
The Directive’s objective is to improve workers’ health and safety at
work. It therefore provides for proper rest periods and a limit on hours
worked. Regulation 4 WTR provides, so far as is material:
(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 [the absolute duty].
(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 para.
(1) is complied with in the case of each worker employed by him in relation to
whom it applies….[the qualified duty].
5.
It is common ground in this case that the 48 hour working week for
non-opted out workers shall be averaged over 26 weeks (see reg. 4(5)).
Enforcement of the qualified duty of employers falls to the Health and Safety
Executive (HSE); reg. 28. By reg. 29(4) an employer guilty of a failure to
comply with a relevant requirement (including that under reg. 4(2)) shall be
liable on conviction to a fine.
6.
Section 45A ERA protects a worker from victimisation by his employer in
relation to his rights under the WTR. It provides, so far as is material:
“(1) A worker has the right not to be subjected to any detriment
[short of dismissal; see sub-section (4)] by any act, or any deliberate failure
to act, by his employer done on the ground that the worker -
……
(c) failed to sign a workforce
agreement for the purposes of those Regulations [WTR], or to enter into, or
agree to vary or extend, any other agreement with his employer which is
provided for in those Regs.”
7.
The protection afforded to workers under s.45A forms part of a group of
protective measures in Part V ERA. Others include those relating to Sunday
working (s.45) and whistleblowing (s.47B). Dismissal of an employee for those
reasons will be automatically unfair under Part X (see, respectively, ss.101A
(Working Time); 101 (Sunday working) and 103A (whistleblowing)).
8.
The s.45A right is enforceable, in common with the other rights which I
have mentioned, by a complaint to the Employment Tribunal under s.48 ERA.
Section 48(2) provides:
“On such a complaint it is for the employer to show the ground
on which any act, or deliberate failure to act was done.”
The facts
9.
At the first hearing the Employment Judge heard oral evidence from the
Claimant and Mr Robinson, the Respondent’s Operations Manager.
10.
The Respondent operates bus services. It has about 1800 employees of whom
90 per cent are drivers. The Claimant commenced his employment as a driver in
March 1988.
11.
Following implementation of WTR (1 October 1998) the Respondent introduced
a policy whereby no working rest days were to be offered to a driver who had
not signed an opt out from the 48 hour working week (under reg. 4(1)). It is
common ground that the Claimant, as with some 52 per cent of the Respondent’s
drivers, had not signed the opt out form (EAT bundle p61). Mr Robinson had no
input into that company policy (second decision, para. 7).
12.
With the assistance of counsel, who have without objection supplemented
the Employment Judge’s findings, the relevant working arrangements were as
follows. By agreement with the trade union the average scheduled working week
for drivers was 38 hours, with a maximum of 42.5 hours. Those working less
than 38 hours were paid for 38 hours; those working more were paid for the
hours worked. The scheduled working week was spread over 5 days, giving 2
days’ rest unless the driver opted to work a rest day. Overtime was voluntary,
save where a driver went over his working day shift due to adverse traffic
conditions. Mr Mitchell told me, on instructions, that the standard hourly
rate is £12.16 and that overtime (including working rest days) was paid at 1⅓
time, that is £18.05 per hour. Rest day working was limited to a maximum of 6½
hours. The Claimant worked the average 38 hour week, involving daily shifts of
7 hours 36 minutes.
13.
The policy for non-working rest days for non-opted out drivers fell into
desuetude and the Claimant worked on average 4-5 rest days p.a. until an audit
was carried out in June 2009. It was then noticed that the policy was not
being enforced. It was re-implemented by a notice to all drivers posted in the
Norwood garage from which the Claimant was based. The wording of the first
notice dated 25 July caused some bad feeling among drivers due to its tone and
it was replaced by a second notice dated 10 August which read:
“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.”
14.
On 6 September 2009 the Claimant wrote a letter to management. His
complaint was that he had been told that if he did not sign the opt out
agreement he would not receive ‘any rest days or overtime’. He added that he
had no intention of breaching the opt out agreement, therefore management
cannot penalise him in the shape of refusing or not permitting him to work one
rest day a week. Mr Robinson replied to that letter on 18 September, offering
a meeting to discuss the matter but the Claimant did not then take further
action on his complaint.
15.
On 21 September 2009 the Claimant was mistakenly rostered for a working
rest day. When Mr Robinson discovered the mistake he remedied it by
withdrawing the working rest day. The Claimant then presented his claim form
ET1 to the Employment Tribunal on 17 December 2009.
The previous Tribunal decisions
16.
Having directed herself in the first decision as to s.45A ERA; reg. 4(1)
and (2) WTR and reg. 4(5) (agreement to exclude the 48 hour maximum working
week) and the definition of detriment contained in Shamoon v RUC
[2003] IRLR 285 the Employment Judge held that the Claimant has been subjected
to a detriment (para. 20) and that ‘as a straightforward matter of causation
that the detriment was caused by the Claimant’s failure to sign the opt out’
(para. 23). The claim succeeded. She declined to order compensation for the
reasons given at paras. 27-30. She did however make a declaration that the complaint
was well-founded (para. 25).
17.
On appeal the EAT appear to have focused on the need to consider the
qualified duty laid on the Respondent to comply with reg. 4(2) WTR (para. 20).
They held that the Employment Judge’s reasons were not ‘Meek-compliant’
and remitted the case, posing this question (para. 21):
“What is the view of the ET 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?”
18.
Following remission the Employment Judge addressed and answered that
question (para. 27). She found that the blanket ban on working rest days by
non-opted out drivers was reasonable in the circumstances. I should say at
this point that in his cross-appeal the Claimant sought to challenge that
finding. However, for the reason given earlier I am not able to entertain that
challenge. Thus the Employment Judge’s finding as to the reasonableness of
that policy, enforced after 15 August 2009, stands.
19.
The Employment Judge went on to consider the relevance of that finding
to the liability question raised by s. 45A ERA. She held that there was no
warrant in the legislation nor the EAT judgment for applying a reasonableness
defence into the simple causation test of whether an employee had been
subjected to a detriment because he or she had failed to forgo a right given to
him or her by reg. 4(1) (para. 36). The question of reasonableness was
relevant to quantum (remedy), rather than liability. Having found that the
Claimant had suffered a detriment (para. 16) she concluded, at para. 39:
“Whatever the reasonableness of the Respondent’s policy as
judged solely on reg. 4(2), in respect of the Tribunal’s jurisdiction under
reg. 4(1) and s.45A it was clear from the evidence of Mr Robinson that the sole
reason for the withdrawal of work rest days was the Claimant’s refusal to opt
out. The Tribunal accordingly concluded that the detriment had been applied on
the ground of the Claimant’s refusal to forgo his rights contrary to s.45A.”
The legal principles
20.
At para. 38, second decision, the Employment Judge noted that the EAT
(in remitting the case) did not state that the case law provided by the
Respondent concerning discrimination and the causation of a detriment (or
dismissal) was of assistance. Nor did the EAT address the Respondent’s
submission ‘that if an employer was negligent in performing its statutory duty
it could not be regarded as subjecting an employee to a detriment’. She also
referred to the EAT decision in Fecitt v NHS Manchester [2011] IRLR 11 (HHJ Serota QC presiding) and did not find it of assistance. I shall
return to that case later. Accordingly, it seems that the Employment Judge did
not draw on the discrimination jurisprudence in determining this complaint.
21.
In my judgment, without any criticism of the Employment Judge being intended
since she did not receive full guidance from the EAT, she was wrong to take
that approach. As Maurice Kay LJ observed in N Glamorgan
NHS Trust v Ezsias [2007] IRLR 603, para. 30:
“Whistleblowing cases have much in common with discrimination
cases, involving as they do an investigation into why an employer took a
particular step, in this case dismissal.”
22.
In my opinion the same may be said of this s.45A complaint, which is
part of the Part V ERA protection referred to earlier. It is therefore
necessary to review the principles emerging from the discrimination cases to
which I have been taken.
23.
The s.45A protection is akin to protection against victimisation. The
‘protected act’ in this case is the Claimant’s right not to enter into a
written agreement with his employer opting out of the 48 hour maximum working
week provided for in reg.4(1) WTR. The prohibited act is where his employer subjects
him to a detriment (by act or omission) on the ground that he has exercised
that right (enshrined in s.45A(1)(c)).
24.
Whether an act by the employer is done on the grounds of or by reason of
the employee doing a protected act amounts to the same thing – see Nagarajan
v LRT [1999] IRLR 572, para. 18 per Lord Nicholls. The question is why
did the Claimant receive the treatment complained of; the reason why question.
25.
The protected act need not be the sole cause of the treatment. It is
enough that it has a significant influence on the outcome – Nagarajan,
para. 19. The employer may have mixed motives – see O’Donoghue v Redcar [2001] IRLR 615.
26.
The burden of proof laid upon the employer by s.48(2) ERA was considered
in Fecitt. The EAT applied the Igen v Wong [2005] ICR 931 test applicable to discrimination cases to that whistleblowing
complaint under s.47B ERA; it was for the employer to show that the treatment
afforded by the employer was in no way whatsoever on the grounds that the
Claimants had made a protected disclosure. That approach was the subject of
some criticism to which I was referred in Harvey on Industrial Relations
v1/C1/244. However, since that section of Harvey was last updated to 1 July
2011 the Court of Appeal has considered the EAT approach in Fecitt;
(2011) EWCA Civ 1190, 25 October 2011. Giving the leading judgment of the
court, with which Davis and Mummery LJJ agreed, Elias LJ dealt with this aspect
of the appeal, albeit strictly obiter, at paras. 36-45.
27.
In summary his Lordship rejected the Igen test adopted by
the EAT and that advanced on behalf of the employer, adopting the unfair
dismissal formulation in asking whether the making of the protected disclosure
was the sole or principal reason for the action complained of. Instead he
preferred the submission made on behalf of the claimants that liability arises
if the protected disclosure is a material factor in the employer’s decision to
subject the claimant to a detrimental act (para. 43). I respectfully adopt
that approach in the present case, which seems to be entirely consistent with
that of Lord Nicholls in Nagarajan and further fits with the
approach to the constructive dismissal question, was the repudiatory act of the
employer an effective, although not necessarily the sole cause of the
employee’s resignation – see Jones v Sirl [1997] IRLR 493; Nottinghamshire
County Council v Meikle [2004] IRLR 703 (CA).
28.
The reason why question must not be confused with the ‘but for’ test.
The distinction was closely analysed by Underhill P in Amnesty
International v Ahmed [2009] ICR 1450. The President returned to that
theme in Martin v Devonshire [2011] ICR 352, by then having had
the benefit of the Supreme Court Judgments in the JFS case [2010] IRLR 136. In short, whereas the but for test may be appropriate in ‘criterion’
cases (see James v Eastleigh BC [1990] ICR 554) it is the reason
why question which prevails in circumstances where the employer’s mental
processes (conscious or subconscious) are in issue. The latter question arises
in the present case.
29.
Although reasonableness is not, of itself, a defence to a s.45A
complaint, the reasonableness of the employer’s conduct came into play in two
House of Lords cases which fell on each side of the line. In CC of W Yorkshire v Khan [2001] ICR 1065, the question was whether the employer had
victimised PS Khan contrary to s2 Race Relations Act 1976 by not
providing a reference for him to another force which he applied to join,
contrary to their usual practice. The reason given was that the force was
engaged in litigation brought by the claimant and that they did not wish to
prejudice their position in that litigation; it was not because he had done a
protected act (complaining of race discrimination).
30.
The Employment Tribunal, EAT (on which I sat) and Court of Appeal upheld
the complaint. The House of Lords reversed those decisions and dismissed the
complaint. In the course of his speech Lord Nicholls observed (para. 29) that
in this context causation is a slippery word. He opined that the victimisation
provisions could not have been intended to prejudice an employer’s proper
conduct of his defence in the litigation so long as he acted honestly and
reasonably (para. 31).
31.
The House of Lords returned to that theme in Derbyshire v St Helens
MBC [2007] ICR 841, a victimisation case which went the other way. The
ET and the EAT (Cox J presiding) held that letters written to employees
conducting equal pay claims against their employer amounted to an act of
victimisation. The CA (Mummery LJ dissenting) allowed the employer’s appeal.
The HL restored the ET decision. At paras. 24-28 Lord Hope considered the
question of honest and reasonable conduct. He accepted that an employer is
entitled to take steps to protect his own interests (para. 26). However, if he
does anything which might make a reasonable employee, there feel that she is
being unduly pressured to concede her claim, here give up his right to refuse
to opt out of the 48 hour week, then victimisation may be made out.
32.
I return to Martin v Devonshire and adopt the President’s
observation that there will be cases where the reason for the act complained of
was not the employee’s protected act but some feature of it which could
properly be treated as separable (para. 22).
33.
As to detriment, the test is that set out in Shamoon, as
the Employment Judge correctly stated at para. 15, second decision.
Analysis
34.
Mr Mitchell puts the case for upholding the Employment Judge’s decision
with attractive simplicity. The Claimant suffered a detriment, in that he was
refused overtime on a rest day because he had not signed the opt-out
agreement. That applied unreasonable pressure on him to sign the opt-out
agreement if he wished to work the overtime. As the Employment Judge found
(second decision, para. 39) it was clear from the evidence of Mr Robinson that
the sole reason for the withdrawal of rest day working was the Claimant’s
refusal to opt out. In any event, on the facts found there was no prospect of
this Claimant exceeding 48 hours work in a week, allowing, if necessary, for
the 26 week averaging. The complaint was made out.
35.
Mr Bailey focuses on the Respondent’s qualified duty under reg. 4(2), a
breach of which would lead to a potential criminal sanction. The Employment
Judge found that the policy adopted by the Respondent was reasonable for the
purposes of reg. 4(2). The reason why Mr Robinson withdrew rest day working in
September 2009 was simply the implementation of that reasonable policy; it was
not action designed to penalise him for not opting-out, nor was its aim to
force him to opt out. The act of withdrawing rest day working pursuant to the
Respondent’s reasonable policy designed to comply with its qualified duty under
reg. 4(2) was that of an honest and reasonable employer and defeats this claim
– see Lord Neuberger in Derbyshire, para. 69.
36.
In my judgment the submissions of Mr Bailey are to be preferred. It
seems to me that the Employment Judge fell into error in two respects; first
she considered that the discrimination principles (set out above) did not apply
in this case and secondly, that her finding of reasonableness in relation to
the Respondent’s policy was relevant to remedy only and not liability.
37.
On my analysis of the facts found the reason why Mr Robinson withdrew rest
day working was because he was required to enforce the newly resurrected
policy; a policy which was reasonable and necessary to ensure compliance with
the Respondent’s statutory duty under reg. 4(2) WTR. That aim may properly be
separated from the underlying refusal by the Claimant to sign the opt-out
agreement. The necessary link between the Claimant’s protected act and the
withdrawal complained of is not made out in these circumstances, regardless of
whether that withdrawal amounted to a detriment from the employee’s viewpoint.
Disposal
38.
Both parties invite me to decide the case, exercising my powers under
s.35(1) ETA 1996, if as I do, I allow the Respondent’s appeal. That
seems to me to be a proportionate course to take; the primary facts have been
found and it is consistent with the modern approach of the CA; see Buckland
v Bournemouth University [2010] IRLR 445, paras. 57 – 58 per Jacob LJ.
39.
Accordingly, I allow this appeal and for the reasons given I shall
dismiss this complaint.
Postscript
40.
Whilst I have sought to determine this appeal by application of the law
as I understand it to the facts found I am also satisfied that the result
accords with good sense and resolves what Mr Bailey contended was a possible
tension between the employer’s duty under reg. 4(2) and the protection to
employees afforded by s.45A. The Directive is a Health and Safety measure,
implemented by the WTR. It would be a strange result if this employer were to
be condemned for adopting a reasonable policy designed to ensure that its
employees who exercised their right not to opt out of the 48 hour week
maintained that right.
