Appeal No. UKEAT/0412/11/DM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
17 January 2012
Before
THE
HONOURABLE MRS JUSTICE COX
(SITTING ALONE)
(1)
MS M BLAIR
(2) MS J BEGUM
(3) MS B DHILLON
(4) MS K SANDHU APPELLANTS
HOTEL
SOLUTIONS LONDON LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
UNLAWFUL DEDUCTION FROM WAGES
CONTRACT OF EMPLOYMENT – Implied term/variation/construction
of term
The Claimants, room attendants at a hotel, claimed to be entitled
to overtime pay under the terms of their contract, when they were unable to
complete the work they were required to carry out each day without having to
work during the one hour break to which they were entitled under the contract.
The Employment Tribunal held that overtime was entirely voluntary under the
contract and that their employer had not in fact required them to work longer
hours than they were contracted to work. Their claim for unlawful deduction of
wages failed. The ET’s Judgment was upheld, no error of law being disclosed.
THE HONOURABLE MRS JUSTICE COX
Introduction
1.
This is the full hearing of the Claimants’ appeal against the judgment
of Employment Judge Hyams, sitting alone at the Watford Employment Tribunal,
which was promulgated with reasons on 28 April 2011, dismissing their
claims of unlawful deductions from wages in relation to unpaid overtime. Three
of the Claimants are here today. They are unrepresented, their solicitors
having apparently come off the record on 4 January this year, although the
EAT was not formally notified of this until 13 January. Unfortunately, no
agreed bundle of documents and no skeleton argument were lodged on the
Claimants’ behalf. However, they have indicated that they are content to rely
upon the documents that were submitted with their Notice of Appeal and upon the
grounds of appeal settled by their then legal representative, and they were
happy for the hearing to proceed today on that basis. The Respondent is
represented by Mr Clement.
Background
2.
The point raised in this appeal is a short one, although it arose in a
rather curious manner. The Claimants were all room attendants employed by the
Respondent, a firm of specialist cleaning contractors, to work at the Sheraton
Hotel at West Drayton. On 9 July 2010 they lodged ET1s complaining,
in very brief terms, that the Respondent was wanting them to clean 20 rooms
each day, alleging that there had been amongst other things a breach of
contract and an illegal deduction of wages. Their employment was transferred
to the Respondent on 26 January 2009, pursuant to the Transfer of
Undertakings (Protection of Employment) Regulations 2006,
and when they had been employed by the transferor they were required to clean only
15 rooms a day.
3.
The Respondent resisted the claims and, at a CMD on 9 November
2010, the main issue to be determined was said to be whether the Respondent had
made unlawful deductions from each of the Claimants’ wages, contrary to
section 13 of the Employment Rights Act 1996.
4.
At the hearing before Employment Judge Hyams the Claimants were
represented by counsel and, after discussion, the issue for determination
changed in the light of the Claimants’ witness statements, which had been
served on the day before the hearing. Their claim was then identified as a
claim for half an hour’s pay per day on a continuing basis since
January 2009, as a result of the Claimants being in practice unable to
take more than half an hour per day off during the working day.
5.
The Claimants’ contracts of employment provided as follows in respect of
overtime, the relevant provision being contained in Schedule 1 to a Union
Agreement dated October 2007, a collective agreement incorporated into the
terms and conditions of employment,
“1.00 Hours of Work
1.01 All employees are employed on the basis of a 40‑hour
attendance and entitled to 2 x 15 minute breaks and 1 x one‑half hour
main meal break, or 1 main break of 1 hour’s duration. This may vary on a
pro-rata basis.
1.02. The working hours are based on a 35-hour week. The timing
and allocation for breaks is subject to the business demands of the
Department.”
6.
Clause 3.0, “Overtime payment”, so as far as is relevant, provided
at clause 3.01:
“Overtime is voluntary, but due to the nature of the business,
employees may be required to work overtime at short notice and their
co-operation in this matter is necessary.”
7.
The Employment Judge heard evidence from all of the Claimants and from
the man who had been their trade union representative during 2009. He heard
also from Mrs Jaleru, the Respondent’s Operations Manager.
8.
The Claimants’ evidence was that in practice they were unable to take
their full hour per day of rest breaks because of their workload, namely having
to clean 15 rooms and attend staff or health and safety meetings when
required. The evidence from their trade union representative was that they
were unable to take more than half an hour’s break each day. However,
Mrs Jaleru’s evidence contradicted this. Her evidence was that if the
Claimants were unable to finish their work in time, they merely needed to tell
her and go home at the allotted time. If any of the Claimants stayed behind to
work additional hours (that is, hours above those which they were contracted to
work), that was voluntary on their part.
9.
Initially the Respondent had sought to obtain the agreement of the
Claimants to clean 20 rooms per day and not just 15. The Claimants had refused
to agree to this, and as a result the Respondent did not require them to clean
more than 15. Cleaning 20 rooms was not therefore a requirement under their
contract. It was the Claimant Ms Blair’s evidence that, even so, it was
not possible to clean the allotted 15 rooms per day because the Respondent
required her and her colleagues to clean more thoroughly than was required by
their previous employer, that is the transferor under the TUPE transfer.
10.
The Employment Judge came to the conclusion on the evidence he heard
that the Respondent did not expressly require the Claimants to clean 15 rooms
before leaving the hotel. He therefore preferred Mrs Jaleru’s evidence to
that of the Claimants, which he was of course entitled to do. He also accepted
her evidence that the Claimants were not told that they could not have an hour
per day in total by way of rest breaks. He then added these words:
“I also came to the conclusion that the Respondent discouraged
the Claimants from saying at the end of their working days that they had not
cleaned the requisite 15 rooms, so that they tended to stay and clean that
number of rooms, and if they had to work over and above their intended 7‑hour
working day in order to do so, then they did not get any extra pay for doing
so.”
11.
On behalf of the Claimants their counsel submitted to the Employment
Judge that the Claimants were in practice required to work overtime and that
they should therefore be paid for it, even though the Respondent did not
expressly ask them to stay behind after the end of their normal working day, or
to take less than their full entitlement to an hour off per working day and
finish their allotted tasks. In rejecting their claims the Employment Judge
found as follows at paragraphs 10 and 11:
“10. I was unable to accept that proposition. If it were
correct, then an employee could claim that his or her employer had given him or
her too much to do, and that the employee should be paid for working overtime
in order to finish the work. That would be a charter for the lazy or the
slow. It was in my view open to the Respondent to require the Claimants to
clean 15 rooms per day, and it was open to the Claimants to go home at the end
of their 7‑hour working day. If the Respondent then thought that the
Claimants had not worked hard or effectively enough, then the Respondent could
subject the Claimants to disciplinary or capability proceedings (as the case
may be). If doing so was in breach of the implied term of trust and confidence
or a fundamental breach of the obligation to utilise a reasonably safe system
of work, then the Claimants could resign and claim constructive unfair
dismissal. If the Claimants did not resign but were subsequently dismissed for
not working hard or fast enough, then they had a remedy in the form of the
right to claim unfair dismissal.
11. In my view, those factors all militated against the
contention of Mr Davies on behalf of the Claimants that the fact that they
could not in practice take their permitted 1 hour of rest per 8‑hour
working day (i.e. with 7 hours of working and the 8th hour spent in ‘attendance’
at the workplace) meant that the Respondent had required them to work
overtime. In my judgment the Claimants would be eligible for overtime pay only
if they were expressly required by the Respondent to work additional hours,
i.e. hours above the number of 7 per day which was provided for by their
contracts of employment. That was not what had occurred, and therefore the
Claimants’ claims of unpaid wages by reason of not being able to take their
full hour per day of rest had to be dismissed.”
12.
The remainder of his Judgment deals with other matters that are not the
subject of this appeal, and I therefore say no more about them.
The appeal
13.
In their first ground of appeal the Claimants contend that the
Employment Judge erred in law in his construction of the contractual terms, in
determining that express instruction was required before an employee can claim
pay for overtime done. The Claimants suggest that no such express term can be
found in the contract. Whereas many contracts of employment include a clause
that overtime is worked and therefore payable only with prior agreement, no
such clause existed here, suggesting that prior express instruction that work
was to be done as overtime was not necessary under this contract. A
requirement to work overtime can arise merely because an employer has asked an
employee to do more work than can be accomplished within the normal working
day, and the Employment Judge’s reference to “a charter for the lazy or the
slow” ignores the inequality in bargaining power between employer and employee
and the potential for exploitation.
14.
In ground 2 it is contended that the Employment Judge had changed
the terms and conditions of the contract by adding a requirement for an express
request to be made before additional work could be classified as overtime and,
in error, was thereby attempting a form of “social engineering”.
15.
In their third and final ground it is contended that the Employment
Judge’s reasons are not “Meek compliant”, a reference to the
need to provide a clear and adequately reasoned decision, as established in Meek v City of Birmingham District Council [1987] IRLR 250. It is suggested that there
is insufficient explanation of how the Employment Judge’s reasoning has been
applied to the facts and the law so as to arrive at his conclusions.
16.
Setting aside observations about the exploitation of workers or charters
for idleness, which are in my view unhelpful, the starting point in this appeal
is the correct construction of the contract. As Mr Clement submits, paragraph 3.01
of the Union Agreement states expressly that “Overtime is voluntary”. What
follows after that unambiguous statement is an exhortation to employees to co‑operate,
if their employer requires them to work overtime at short notice, but that cannot
limit the express condition in the contract that overtime is and remains
voluntary. It seems to me that the Claimants are effectively seeking to
elevate the requirement for co‑operation in certain circumstances to a general
requirement to work overtime, which is not what is provided by the terms of
their contract.
17.
Further, there was in this case no evidence before the Employment Judge
that in practice the Respondent had ever sought to compel the Claimants to work
overtime. Their essential complaint was that they were so busy each day cleaning
the 15 rooms thoroughly that they felt that there was insufficient time for
them to take more than half of the one‑hour break to which they were
contractually entitled. It appears that, when asked, the Claimants were unable
to give any particulars about any dates on which they felt that they had been unable
to take the whole of their one‑hour break due to the alleged pressures of
their work. Rather, against a background of what appears to have been a lack
of clarity as to what they were actually claiming before the Tribunal, their
evidence appears to have amounted to a generalised complaint that, since
January 2009, they had been unable to take their contractual one‑hour
break each day. The Employment Judge rejected this evidence.
Conclusion
18.
In my judgment, the Employment Judge did not err in his construction of
the terms of the contract. I consider that his analysis was entirely correct.
The correct construction of paragraph 3.01 of the Union Agreement is that
notice, whether short or not, would have to be given to employees in order for
them to know that the employer had requested that they work overtime. The
employee could then decide whether or not to undertake that work. For these
reasons there is no merit in either of the first two grounds of appeal. On the
factual dispute, the Employment Judge clearly heard the evidence on both sides
and preferred the evidence of the Respondent, which of course he was entitled
to do.
19.
Further, I reject the suggestion made in ground 3 that the
Employment Judge’s decision on the issues is not sufficiently clear or adequately
reasoned. It is correct that there is no reference to the relevant legal principles,
and it would have been helpful to state them, even where they are well known
and both sides are legally represented. The main issue to be determined in
this case, however, was a factual one, namely whether there had been unlawful
deductions from wages. The Employment Judge clearly found on the evidence that
the Respondent did not in fact prevent the Claimants from taking any part of
the one‑hour break to which they were entitled under their contract. For
the reasons he gave he did not accept the Claimants’ evidence. In the
circumstances the Claimants’ case was doomed to fail, and for those reasons
this appeal must be dismissed.
