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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Refrigeration Norwest (Chester) Ltd v Unwin [2004] UKEAT 0394_04_0311 (3 November 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0394_04_0311.html Cite as: [2004] UKEAT 0394_04_0311, [2004] UKEAT 394_4_311

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APPEARANCES

 

For the Appellant	NO APPEARANCE WRITTEN SUBMISSIONS
For the Respondent	NO APPEARANCE WRITTEN SUBMISSIONS

SUMMARY

Redundancy payment – normal working hours – 35 hours worked for 9 years except for a short period – contract expressly provides for 20 hour working week – normal working hours held to be 20.

THE HONOURABLE MR JUSTICE BEAN

1. On 23 May 2003 the Applicant, Mrs Unwin was dismissed by the Respondent, Refrigeration Norwest Limited by reason of redundancy. The Applicant claimed that the redundancy payment calculation made by the employers was incorrect. She also claimed that some holiday pay was outstanding.
2. Mrs Unwin worked for the Respondent as a cleaner and the fact that her dismissal was by reason of redundancy was not in dispute. She initially worked twenty hours per week but as work increased this was increased to regular hours of thirty five hours per week from about 1994. In 1996 the Applicant signed two statements of terms and conditions of employment. For some reason there is one dated 21 August 1996, one dated 13 September 1996 but to all intents and purposes they are identical, at least so far as relevant to this appeal. Each document states normal working hours as twenty and further states that overtime is voluntary.
3. The Applicant's evidence was that at the time she signed either or both of these documents she was told that her work could continue at thirty five hours per week. However, for a short period in 2001 the hours reduced, though the Applicant said they never reduced to twenty. They soon returned to thirty five hours. The Employment Tribunal held:

"The fact that 35 hours were not guaranteed does not prevent such hours representing the prevailing hours agreed under the contract of employment at the date of the Applicant's redundancy."

4. The principal issue between the parties is: what were Mr Unwin's "normal working hours" at the date of her redundancy? If, as the learned Chairman (whose sat alone to constitute the Employment Tribunal) held, normal working hours were thirty five hours per week the redundancy payment made by the employers fell short by £347.44 and there was a further shortfall, yet to be calculated, on holiday pay for the part holiday year between 1 April 2003 and her dismissal on 23 May 2003. Secondly, there is an issue as to whether the calculation of "a week's pay" for the purposes of a redundancy payment fell under Section 221(2) of the Employment Rights Act 1996 or as the Chairman held under Section 221(3). That can be expressed in less technical language as being a question as to whether Mrs Unwin's remuneration for the normal working hours, whatever they were, varied with the amount of work done by her. Thirdly, if the Applicant was entitled to any additional redundancy payment should bonuses be included in the calculation?
5. Turning then to the principal issue it might well be thought (and I can understand why the Applicant thought) that in the phrase "normal working hours" "normal" is a synonym for "regular". The helpful written submissions of Mr Derbyshire, the Applicant's brother, on her behalf emphasise that there were only fifteen weeks in a period of seven years during which Mrs Unwin worked anything less than thirty five hours per week.
6. Unfortunately for this argument, the expression "normal working hours" in the redundancy legislation has acquired a technical meaning. In Tarmac Roadstone Ltd v Peacock [1973] 1 WLR 594, CA the Court of Appeal held that normal working hours means hours which are fixed and obligatory on both sides.
7. Here the written terms and conditions of employment stated clearly that normal working hours were twenty and that overtime was voluntary. There is no finding by the Tribunal, nor indeed any allegation, that this was a sham devised to avoid liability under employment legislation. Indeed, on the contrary, there is an express finding in paragraph 4 of the Extended Reasons of the Tribunal that the thirty five hour figure was not guaranteed. It follows that the employers were not obliged in law to offer thirty five hours per week; and that the Tarmac test is simply not satisfied; and that the findings of the Tribunal that there was a shortfall of £347.44 on redundancy payment and a shortfall to be assessed in respect of holiday pay must be set aside.
8. The remaining two issues can be dealt with briefly. The Applicant's pay for the normal working hours (that is to say twenty hours) did not vary from week to week. Mrs Unwin was working on a flat hourly rate. She was not a piece worker. Therefore Section 221(2) rather than 221(3) of the 1996 Act applied in her case because remuneration for normal working hours did not vary with the amount of work which she did.
9. As to the third issue, Mrs Unwin was not entitled to any additional redundancy payment above what the employers paid her; but in any event if she had been, the bonuses paid to her which depended not on her individual work but on the company's results, turnover and profitability would not fall to be included in the calculation.
10. It follows that, while I have sympathy for the Applicant, who no doubt thought that normal working hours meant what the phrase apparently means, nevertheless the learned Chairman's decision cannot be sustained and the appeal must be allowed.
11. I add by way of footnote (in case anyone other than parties should be reading this decision) that when the matter came before His Honour Judge McMullen QC on 31 August 2004 at a Preliminary Hearing he noted in ordering a Full Hearing that the sums involved in the case were very small and the parties were based a long way from London. An Order was therefore made for the appeal to be dealt with by way of written submissions, which is an appropriate course in a case which has these features.