Appeal No. EAT/780/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 23 June 1994

	Before

	HIS HONOUR JUDGE D M LEVY QC

	MR J C RAMSAY

	MR R TODD

T JAMES (BEDLINGTON) LTD	APPELLANTS

MR J H TREADWELL	RESPONDENTS
MR G T NICHOL
MR W   JOYCE

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR M BARKLEM
(OF COUNSEL)
Messrs Harper MacLeod
Solicitors
The Ca'd'oro
45 Gordon Street
Glasgow G1 3PE

For the Respondents	MR JOE O'HARA
(NATIONAL LEGAL OFFICER)
GMB
22-24 Worple Road
London SW19 4DD

	JUDGE LEVY QC:		Mr Treadwell, Mr Nichol and Mr Joyce were all employed by T James (Bedlington) Ltd in the construction industry prior to the termination of their employment by reason of redundancy.  None of them were employed pursuant to the terms of a written contract of employment.  The Industrial Tribunal, who heard an application from them on the terms of their redundancy on the 5 August 1992 at Newcastle upon Tyne, by majority held that each of the Respondents were entitled to a redundancy payment, calculated on one week's pay, of £181.26.  Mr Treadwell represented himself below and has not appeared on this appeal, which is by the employers.  Mr Nichol and Mr Joyce were represented below and are represented by Mr O'Hara on this appeal.  The Appellant is represented by Mr Barklem.

	The appeal, according to the Notice of Appeal, turns on this point:

"The majority of the Industrial Tribunal have erred in considering the contractual relationship between the Appellants and the contractors for whom the Respondents were working at the date of the Respondents' dismissal by redundancy.  The majority ought to have considered the contractual relationship between the Appellants and the Respondents which is reflected in their findings numbers 12, 13, 14, 15 and 16."

	That was refined in the skeleton argument on behalf of the Appellant in this way.  It was suggested that there had been a wrong construction placed on the well known decision of the Court of Appeal in Tarmac Roadstone Holdings v Peacock & Others [1973] ICR 273 by the majority of the Tribunal.  That case, as did this, depends on what were properly to be considered the "normal working hours" of employees for the purposes of calculating a redundancy payment under the appropriate legislation.

	It is clear from reading the Notes of Evidence and the Reasons of the Tribunal, as well as the other documents in our bundle before us and two additional documents which have been placed before us, that there was confusion below between "contracts of employment" and a "statement" (the statutory statement) given to two of the three Respondents in accordance with the provisions of Part 1 of the Employment Protection (Consolidation) Act 1978.  The statutory statements seem to have been considered in the Notes of Evidence and possibly in part in the reasons, as if they were actual contracts of employment. 

	Our attention has been drawn to Robertson & Jackson v British Gas Corporation [1983] IRLR 302.  There Lord Justice Ackner gave the leading judgment at the Court of Appeal.  Paragraph 10 of the report of his judgment commences:                                                                                                                                                  "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 Appeal Tribunal in the case of System Floors (UK) Ltd v Daniel [1981] IRLR 475 where this was said by the President Mr Justice Browne-Wilkinson.  He referred to the authority which existed in the Divisional Court, Turriff Construction Ltd v Bryant (1967) 2 KIR 659, where Lord Park CJ at page 662 said this:
`It is, of course, quite clear that the statement made pursuant to s.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.'"

	We refer to that paragraph of Ackner L.J's judgment by way of preliminary, because this appeal has turned on the construction which was put on the statutory notices by the Tribunal below.  In paragraph 21 of the decision, they considered two of the three notices given by the employers which they had before them; the third one was not in evidence and there was no finding that there was such a document.  They considered in particular paragraphs 3, 6 and 7 of those documents to see whether overtime was paid for the employees in the terms of Schedule 14 of the Employment Protection (Consolidation) Act 1978, as that had been construed in the Tarmac case and another case which was cited to us, Lotus Cars Ltd v Sutcliffe & Stratton [1982] IRLR 381.

	Mr O'Hara has submitted to us that the references to the Tarmac case and to those paragraphs of the statutory documents were, so to speak, confirmatory of the decision of the Tribunal below, as to what the redundancy payment should mean, and that it was not necessary to go into the niceties of the very difficult decision and the very difficult schedule for the purpose of this case.  He says that there was evidence before the Tribunal below that there were certain hourly works of certain hours of work done by the Respondents' employees in this case, on which their redundancy pay had to be calculated.

	He points in particular to the finding in paragraph 23 of the reasons which reads thus:

"In this case the majority, consisting of the Chairman and Mr A F Dixon, believe that at the time they were made redundant the applicants were working under contracts of employment where the normal hours of work were 7.30 am to 5.30 pm and that those hours had been agreed verbally with Mr James."

	Having looked at the Notes of Evidence, we are satisfied that that is a conclusion to which the Tribunal below could have come and in those circumstances the way in which they calculated their redundancy payments was one which was open to them and was indeed correct.  We think that the emphasis which they placed on the notices given to two of the three employees may have assisted them in getting to that interpretation, but what the Tribunal had to do was look at the original contractual terms of employment of the employees, see whether these had been varied and come to a conclusion as to what the normal hours of employment were on the particular facts of this case.  We consider that this is what the majority did.

	The minority, Mr Bowes, accepted that there was an obligation upon the Applicants to put 7 hours overtime work each week, but found himself unable on the evidence put before the Tribunal to accept that there was an obligation on the part of the Respondents to provide that overtime.  We think that he was concentrating entirely on the statutory notices, rather than on the contracts of employment of the employees.  We observe that two statutory notices which we have seen came months after the employees commenced work and accordingly the weight to be given to them was a matter the Industrial Tribunal could properly take into account.

	In these circumstances we think that the appeal should be dismissed.