THE INDUSTRIAL TRIBUNALS 

CASE REF:	890/02

APPLICANT:	Joseph McDaid

RESPONDENT:	Derry City Council

DECISION
The unanimous decision of the tribunal is that the applicant has not proved that there was an unlawful deduction from his wages and his originating application is dismissed.  

Appearances:
The applicant was represented by Ms M Larkin, Barrister-at-Law, instructed by Wilson Nesbitt, Solicitors.
The respondent was represented by Mr D McMillen, Barrister-at-Law, instructed by J Blair, Solicitor.  

1.	The tribunal wishes to record its thanks to the parties for the written arguments and the agreed statement of fact which has resulted in a shorter time for hearing with the issues properly presented before the tribunal.  Counsel for the applicant stated that he was no longer relying on a claim of discrimination under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000.  

2.	The applicant was employed as a part-time recreation assistant and the tribunal saw his letter of appointment which was dated 15 December 1982.  It set out the offer and stated “Your basic hours of duty will be Thursdays and Fridays 1.30 p.m. to 10.30 p.m.  These hours may be subject to change, however, when required to meet the needs of the Complex.  The rate of pay for the post is ….. per week.”  It was agreed that his terms and conditions of employment were as agreed and set out in a book referred to as “the green book”.  The applicant’s claim had arisen because he had a period of some five weeks’ sick leave in 2001 and a further short period in 2002 which resulted in a lower figure being awarded for sick pay than he claimed was his entitlement.  This was because under the terms of “the green book” the sick pay was calculated on his contracted hours of employment, not the additional hours that he worked.  The claim to the tribunal was that he should be treated as having normal working hours of 37 hours per week.  The tribunal saw documents which showed that the applicant did work over the contracted hours set out in his original letter of appointment.  The tribunal accepted evidence that if he worked at any period from Monday to Friday it was paid as basic hourly rate.  Working on a Saturday or Sunday attracted additional payment and similarly if he had to work unsocial hours.  The originating application was registered on 10 April 2002 and we looked at the hours he worked for periods before that date.

3.	Counsel for the applicant made a written submission “in practice however he works full time hours of 37 hours per week.  When the tribunal examined the agreed documentation this was not borne out by the hours highlighted for the applicant.  There were some weeks that he worked 32 hours, some weeks 20 hours, some weeks 37 hours but there was no common figure of 37 hours apparent from any of the averages which could be taken.  The tribunal accepted counsel for the respondent’s submission that the applicant’s original shift pattern was to work on Thursday and Friday one week and then a half day Thursday, Friday and all day Saturday the second week.  He worked overtime on top of those hours but not necessarily every week.

4.	Counsel for the respondent submitted that the tribunal must focus on what was the agreed contract between the parties.  If there had been a variation as submitted by the applicant then evidence had to be forthcoming that it was a variation by consent by both parties.  The tribunal agree with counsel for the respondent, this has not been shown by the evidence.  Certainly the applicant worked extra hours and there was an expectation of such a requirement when he signed his letter of offer.  However, there was no regular consistent number of hours expected for the applicant to work every week.  Counsel for the respondent and the applicant drew our attention to Article 5 of the Employment Rights (Northern Ireland) Order 1996 which defines “normal working hours” as follows:-

5(1)	Where an employee is entitled to overtime pay when employed for more than a fixed number of hours in a week or other period, there are for the purposes of this Order normal working hours in his case.

(2)	Subject to paragraph (3) the normal working hours in such case are the fixed number of hours.

(3)	Where in such a case (a) the contract of employment fixes the number, or minimum number, of hours of employment in a week or other period (whether or not it also provides for the reduction of that number or minimum in certain circumstances), and (b) that number or minimum number of hours exceeds the number of hours without overtime, the normal working hours are that number or minimum number of hours (and not the number of hours without overtime).  

5.	The tribunal referred to Harvey on Employment Law Volume 1 C1 para 823 onwards.  The author states that if there is no question of overtime the issue should be straightforward:  Does the contract fix the number of hours or the minimum number of hours the employee is obliged to work, if so those are his normal working hours.  Where the matter is complicated by overtime, then the general rule is that overtime hours are to be regarded as abnormal rather than as part of the normal working hours.  At para 831 the author states “overtime hours can be included as normal working hours if, but only if they are compulsory (for the employee) and guaranteed (by the employer) for fixed implies an obligation on both parties”.  The tribunal is satisfied that the overtime in this case was not compulsory and in fact was not always worked by the employee, thus we have to look at the other hours that he worked and whether they fell in the nature of a regular occurrence such that they could be considered normal working hours.  The tribunal cannot accept that.  Whilst he did work extra hours on certain days it did not give rise to the result that it was a normal weekly pattern for a fixed number of hours.  Similarly there was no evidence to establish that the hours worked amounted to custom and practice such that the contract could be considered to have been varied.  Thirdly, the tribunal, as previously stated, does not accept that there was evidence to show there was a variation of the contract which was agreed on 15 December 1982.  The tribunal also referred to the decision of Tarmac Roadstone Holdings Ltd –v- Peacock & Others [1973] 2All ER 486 and the analysis of overtime and normal hours provided by Lord Denning.  The tribunal referred to the recent case of Bamsey –v- Albon Engineering & Manufacturing plc 2004 IRLR 460 Court of Appeal and Lord Justice Auld’s decision in relation to the meaning of ‘normal working hours’ for the purposes of Section 234 of the Employment Rights Act 1996 which compares with Article 5 of the Employment Rights (NI) Order 1996.  In conclusion the tribunal found that the applicant has not established that his normal working hours gave rise to an entitlement for sick pay which was greater than his contractual terms.  The originating application is dismissed.

____________________________________
M P PRICE
Vice President

Date and place of hearing:  2 August 2004, Belfast

Date decision recorded in register and issued to parties: