Appeal No.	 EAT/734/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 October 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MRS T A MARSLAND
MR B M WARMAN

NEW CENTURY INDUSTRIAL SERVICES LTD	APPELLANTS

MR P BROOKS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellants	MR COLIN BARR
(Representative)
Human Resources Manager
OCS Group Ltd
Frederick House
Brewer Street
Maidstone
Kent
ME14 1RY	

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing is to determine whether there is an arguable point of law in a Notice of Appeal which has been filed in relation to a decision of an Industrial Tribunal, which concluded that the applicant, Mr Brooks, had been unfairly constructively dismissed by his employers, New Century Industrial Services Ltd. The employers seek to appeal that conclusion.

	The tribunal’s decision can be summarised briefly. The applicant commenced his employment on 10th January 1968 and worked for the Company until his resignation on notice on 18th July 1997. So he had worked there for 29 years plus by the time of the dismissal. He was promoted in 1984 to the position of site supervisor, and during 1986 he became area manager. Throughout his employment he had worked regular overtime. It is not without significance that the applicant lived in Hertfordshire and was working at Brooklands College, and his hours of work were from 5 a.m. to 9.30 a.m., from 1 p.m. to 3 p.m. and from 6 p.m. to 7 p.m. daily. As he did not live as the tribunal put it “on the doorstep” so that he could go home between those times, he was involved in working overtime in the gaps between the various shifts. The Industrial Tribunal concluded that the applicant did not have a written contract of employment, although they accepted that he had signed in July 1984 a senior staff engagement form showing his title as site supervisor when he was promoted to that position at that time, and that next to that engagement form was a form of standard terms and conditions of employment, and various other documentation.

	The applicant worked happily until his line manager, Mr Rees, was made redundant in May 1997, and the respondents recruited a Mr Weekes as operations manager from that time. The relationship between the parties changed as a result of that change in personnel. The applicant was told to concentrate on the Brooklands College contract, and despite representations from the applicant, he was told that that was indeed his only duty, and he was told to remain on the Brooklands’ site rather than doing other work in his capacity as area manager. 

	The tribunal made a number of specific findings in relation to the way the applicant was treated. First of all they effectively find that his position was undermined by Mr Weekes who would visit the site but not speak to him first as he should have done, as the applicant was in charge. The applicant was told by Mr Weekes specifically that he did not fit in and that the employers wanted him out. He was asked by his assistant when he was leaving and she said that Mr Weekes had been around to her home and had offered her his job. They found that the applicant was not paid on one occasion the overtime payments to which he was due, but that they delayed making the payment which caused him some financial embarrassment and a need to go and make an overdraft arrangement with his bank. Thereafter the monies were paid. He was concerned about the lack of overtime which may have been due to the termination of one of the contracts that the respondents had, but the tribunal found that Mr Weekes accepted that there was overtime available, and it appears, although it is not entirely clear, that the problem was partly because Mr Weeks was spreading the overtime around to other employees. Be that as it may, there came a time in June when the applicant could not cope with what was going on and he wrote and asked for his salary to be reviewed. Although they gave evidence to a contrary effect, that was not accepted by the tribunal and the tribunal concluded that the employers did receive the letter but did not reply to it. As a result he wrote giving in his notice.

	In the applicant’s IT1, which was prepared on his behalf by the Citizens Advice Bureau, it was said as follows:

“It is our client’s assertion that after nearly 30 years’ of loyal service, there was a short and effective campaign by Mr Weekes in collusion with Mr Garrett to make Mr Brooks’ position untenable. By squeezing him financially by denying him overtime and seizing from him the majority of his management portfolio, he was left with no choice but to resign.”

	The Industrial Tribunal concluded, having regard to the decision in Western Excavating v Sharp [1978] ICR 78, that the employers had broken the contract with the employee in a number of respects. They concluded that he had a contractual entitlement to work regular overtime. There was a breach of an express term of the contract or an implied term of the contract in failing to pay him his earned overtime timeously, but it was pointed out that that was not of itself a breach which went to the root of the contract. The tribunal then said this:

“9.	We accept the Applicant’s evidence as his treatment by Mr Weekes and the words used by Mr Weekes towards the Applicant and which are referred to in this decision. That conduct is a breach of the implied term of mutual trust. Together as an accumulation of events without question we find the Respondents conduct amounted to a breach of the Applicant’s contract of employment which entitled the Applicant to resign. We find without doubt the Respondents’ conduct was done with a view to forcing the Applicant to resign. They achieved that result. Their conduct entitled the Applicant to justly claim that he was unfairly constructively dismissed. In reality we believe that there was a redundancy situation [I interpose that no doubt because of the loss of the contract to which we have referred] and the Respondents do no longer need an area manager, but merely a site supervisor. Had the Respondents dealt with the matter properly then the Applicant we believe should have been made redundant. However, the Respondents did not deal with the situation in that way. The Applicant was unfairly constructively dismissed.”

	In support of this appeal, Mr Barr, who has presented the case with skill and care, submits to us that the Industrial Tribunal had misdirected itself in law, principally in relation to the contractual terms between the parties. The focus of his attention was largely on the question as to whether overtime was indeed a contractual entitlement which the applicant enjoyed. It seems to us that the working of overtime may take one of three forms. Firstly, an obligation on an employer to provide overtime and an obligation on the employee to work it when provided. Secondly, no obligation on the employer to provide overtime, but an obligation on the employee to work it if provided with it. Thirdly, the working of overtime may be entirely voluntary.  In order to have succeeded in this case, the applicant would have had to establish that this was a category 1 case. Mr Barr submitted to us that the facts did not justify it.

	We accept that the Industrial Tribunal has not analysed the position in the way that we would have wished on this particular issue. The argument for saying that the applicant was entitled to overtime in a category 1 sense can be put this way. Firstly, the circumstances in which he came to be employed and where he was living in relation to his work and the split shifts; secondly, the fact that he was regularly provided with that overtime; thirdly, that the employers certified his earnings to lenders to the applicant on the basis that the overtime figures were to be included; and fourthly, on the basis that from 1993 to the date of his termination, he was not given a pay rise on the basis that he was able to make good his basic salary by the overtime work which he was doing. It would, in our judgment, have been open to the Industrial Tribunal on that material to have concluded that the employers were under a contractual obligation to provide overtime. It seems to us in those circumstances, that their finding that there was an implied term that overtime fell into the first category is not a finding with which we can properly interfere, but that said, it can be said, as Mr Barr has submitted, that the mere fact that an employee has worked overtime on a regular basis does not necessarily lead to the conclusion that the employers were under a contractual obligation to provide it. Each case must be looked at on its own facts. There were special features about this case which justified the conclusion which the Industrial Tribunal arrived at. That being so, we dismiss the appeal in relation to that issue, despite Mr Barr’s cogent submissions.

	In relation to the case more generally, it does seem to us that there was a compelling case for finding that the applicant had been constructively dismissed. We have adverted to the principal findings of fact made by the Industrial Tribunal. It was plain that the Industrial Tribunal unanimously took the view that this was a clear case of constructive dismissal. Their finding that the respondents did behave the way they did with a view to forcing the applicant to resign, was a strong indication of the view which they took of the way that this long-serving employee was treated at the end of the day. Accordingly, we are not persuaded that there is any arguable point of law in this appeal and it must be dismissed.