Appeal No.	EAT/1052/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 October 1999
Judgment delivered on 3 March 1999

Before
HIS HONOUR JUDGE H J BYRT QC
MISS C HOLROYD
MRS T A MARSLAND

RAILCARE LTD	APPELLANTS

MR C COOK	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR C SHELDON
(of Counsel)
Instructed by:
Mr P Hayland
EEF East Midlands Association
Barleythorpe
Oakham
Rutland
LE15 7ED	
For the Respondent	MR P BROWN
(of Counsel)
Messrs Pattinson & Brewer
Solicitors
30 Great James Street
London
WC1N 3HA	

	JUDGE BYRT QC:		This is an appeal from a decision  dated the 29th July 1997
of an Employment Tribunal sitting at Bedford. By their decision, the Tribunal held that the term of Mr Cook’s contract of employment relating to his wage payment period is as set out in clause 3 of the statement of particular issued to him under Section 4 of the Contracts of Employment Act 1963. This stated as follows:

“Wages are paid weekly in respect of each week ending with Saturday and are paid to you not later than 7 days after the end of the week for which payment is due.”

The Employers appeal that decision but, in only a limited way, and the extent to which they do so will be more plain after we have set out more of the story.

	Mr Cook began working for the Appellants’ predecessors in 1973. He was issued with a statement of terms and conditions of employment. Clause 3 of that statement is as set out above and made provision for his wages to be paid to him weekly. From the beginning, he was paid weekly in cash, and that remained the position until December 1996. In the meantime, there was a transfer of the original undertaking which employed him, and the Appellants became his employers. The Transfer of Undertakings (Protection of Employment) Regulations 1981 applied to that transfer. That is not disputed, and no issue arises from the change.

	On the 12th December 1996, the Employers paid him his last weekly payment in cash and notified him he would receive his next payment on the 9th January 1997 and that thereafter his wages would be paid every four weeks. Mr Cook objected, and on the 6th January 1997 he issued his Originating Application before the Employment Tribunal alleging that the new pay arrangements were in breach of his contract of employment. The Employers entered an appearance denying liability; there was some correspondence between the parties and the Tribunal and in consequence Mr Cook applied to the Tribunal for leave to amend his application so as to make it an application for a reference under Section 11 of the Employment Rights Act. Leave was granted on the 22nd April 1997, and the case proceeded on that basis. The issue thus became one of determining whether clause 3 of the statement of the terms and conditions of his contract remained effective or had been superseded by some other agreed arrangements. There were three occasions when this might have happened.

	Mr Cook was employed at the Appellant’s depot at Wolveston. The employees there were represented by a number of unions. Mr Cook belonged to the RMT. In 1989 the RMT were consulted by the employers who wished to change the weekly payment period to one which was four weekly, and it was agreed that the employers could introduce the altered arrangements for those employees who consented to them. Consents were encouraged by the offer of a one-off payment of £90 to those willing to consent. Mr Cook was not to be bought and he did not consent. Weekly payment continued to be made to him.

	In the early part of 1996, the Employers met with another of the unions, the CSEU. It is not clear whether anything was agreed as a result of their meetings. There were no minutes taken, no written agreement signed. In any event, the RMT, Mr Cook’s union, did not take part in those discussions, and so its members could not be bound by anything which had been agreed. The Tribunal declared that they were not satisfied that either of the above mentioned negotiations with the Unions resulted in any arrangement which enabled the Employers to depart from what had been agreed with Mr Cook in 1973.

	That was the position which appertained on the 6th January 1997 when Mr Cook issued his application. Had that been the sole basis of the Tribunal’s decision in favour of Mr Cook, he would have succeeded in his application, and the Employers, in argument before us, have conceded that they would not have been appealing the Tribunal’s decision. However, the Tribunal went on to consider what happened between the 6th January 1997 and the hearing date on the 3rd June 1997.

	Early, in 1997, national negotiations took place between the Appellants, CSEU, RMT and TSSA trade unions, and on the 21st March 1997 an agreement was signed which proposed that, from some point in 1997/98, the payroll would be run monthly to gain benefits from implementing a new personnel and payroll system. It was agreed between the parties that, if this National Agreement had Mr Cook in contemplation so that it applied to him, it would bind him, being a National Agreement to which his unions was party. The issues which arise at this stage are (1) whether it was right in law for the Tribunal to consider, as part of their findings, something which had occurred after the date of the Originating Application; and (2) whether the National Agreement applied to Mr Cook.

	The Tribunal was none too confident that it was right to confine their decision to the position as at the 6th January 1997 and so thought it desirable to cover the position arising on the National Agreement. Furthermore, since the only real issue between the parties arose on the implications of the National Agreement, it seemed to the Tribunal less than helpful to confine their decision to the earlier date when such a decision may have become largely academic as a result of the National Agreement.

	When considering the National Agreement, the Tribunal held that the Agreement did not have Mr Cook in mind. The relevant clause is clause 4.8 which says this:

“Payment Method
4.8	Four weekly credit transfer arrangements are now well established. It is proposed that from some point during 1997/98 the pay roll will be run monthly to gain the benefits form implementing a new personnel and payroll system. When this is introduced salaries will be paid on a fixed date towards the end of the month.”

In paragraph 15 of their decision, the Tribunal asked:

“... to what extent does it cover the Applicant? If one looks at it, it starts off “Four-weekly credit transfer arrangements are now well-established”. It then goes on to deal with a change from four-weekly credit transfers to monthly payments. It doe not specifically deal with the question of those who were on weekly terms. One would have thought that there would have been such a sentence or clause dealing with it. If it is not clear, it should be construed against the person wishing to apply it.”

As a result of this analysis, the Tribunal held that there was nothing in clause 4.8 of the Agreement which applied to Mr Cook and those other few like him who had insisted on being paid weekly, and that accordingly the legal position remained as it was on the 6th January 1997, namely that Mr Cook was entitled to be paid as it was originally agreed in 1973.

	Mr Sheldon, for the Employers, argued that the Tribunal erred in law in two respects: First, he submitted the Tribunal did not have jurisdiction to consider Mr Cook’s statement of particulars as it might have been affected by anything which happened after the lodgement of his Originating Application. Second, he submitted that, in any event, the Tribunal erred in its finding that the National Agreement did not apply to Mr Cook.

	In support of the first contention, Mr Sheldon referred us to the Sections 11 and 12 of the Act and submitted that those Sections statutorily required a Tribunal, on a reference, to focus on the terms of the statement of employment as at the date of the Originating Application. In support of the second contention, he submitted that the Tribunal wrongly relied on a canon of construction which they had invented for themselves, namely that, when in doubt, a clause is to be construed against the party wishing to apply it. He says the Tribunal should have deferred to the objective of the agreement set out in clause 3 which was the harmonisation of the terms and conditions as far as possible between existing groups. Approaching the construction of clause 4.8 with this objective in mind, the Tribunal should, he submits, have seen that that clause clearly intended to apply to Mr Cook.

	Mr Brown, for Mr Cook, argued a preliminary point. He submitted that an appeal lies only against the Tribunal’s decision and not against its reasoning: see Harrod v Ministry of Defence [1981] ICR 8. In this instance, the Tribunal’s decision was to confirm the term as to payment set out in Mr Cook’s statement of particulars, clause 3, and it mattered not if that decision was right on the basis of one part of its reasoning and wrong on the basis of another. Further, he submitted that Sections 1, 4, 11 and 12 of the 1996 Act gave the Tribunal jurisdiction to consider the National Agreement notwithstanding it involved consideration of matters arising after the lodgement of the application. Both parties had raised the issue of the Agreement for a decision, and it was therefore necessary as well as sensible for the Tribunal to give a decision on this aspect of the case which is critical to the parties’ problem.

	Our first concern must be to determine the relevant date the Tribunal have to have in mind when they consider a reference under Section 11 of the Act. For an answer, regard must be had to what the statute says.

	Section 1 requires an employer to give his employee a written statement of particulars of employment not later than two months after the beginning of his employment. The Section expressly requires those particulars to include details about pay and the intervals at which it is to be paid. Although that written statement is not strictly speaking, a contract of employment, the statute clearly intends that the statement should mirror the contract in such a way that it provides the employee with a written record of what are deemed the significant features of that contract.

	Section 4 provides for any changes in the matters particulars of which are required by Section 4. Sub-paragraph  (3) provides that the employer must give a written statement of the changes “at the earliest opportunity and, in any event, not later than one month after the change in question”.

	Section 11 says this:

“(1) Where an employer does not give an employee a statement as required by Sections 1, 4 ... (either because he gives him no statement or because the statement he gives does not comply with what is required), the employee may require a reference to be made to an industrial tribunal to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the section concerned.
(2)	Where-
(a)	a statement purporting to be a statement under section 1 or 4, ... has been given to an employee, and
(b)	a question arises as to the particulars which ought to have been included or referred to in the statement so as to comply with the requirements of this Part,
either the employer or employee may require the question to be referred to and determined by an industrial tribunal.”

	Construing those provisions in accordance with their natural meaning, it is our judgment that the Tribunal is required to make a determination, as to the position at the date of the reference. At that point in time, the applicant is inviting the Tribunal to consider whether, prior to that moment, the employer has failed to comply with the requirements of Section 1 and 4. If the Tribunal finds that he has so failed, then the Tribunal is invited to say what particulars ought to have been included in order to satisfy those requirement. If the material date for the Tribunal to consider the contents of the particulars was the date of the hearing, then there would be no sense in making the Employer’s failure to provide the particulars required by Sections 1 or 4, the ground for the reference.

	Whilst one has every sympathy for the parties who would have wished to have had a ruling on the applicability of the National Agreement to Mr Cook, Section 12 does not, in our view, give the Tribunal jurisdiction to make a ruling on that issue if Section 11 does not. It was argued that, under Section 12, the Tribunal was empowered to make such a ruling because the Section enabled them to amend or substitute the particulars given “as they the Tribunal thought appropriate”. In our judgment, the powers of the Tribunal, given by Section 12(2), have to be read in the context of what Section 11(2) is about, because that is precisely what Section 12(2) says one has to do. Where there has been a failure to comply with Sections 1 and 4, then the Tribunal may amend the particulars or substitute others “as the Tribunal may determine to be appropriate” in order to satisfy the requirement of those two Sections.

	There remains one further issue arising from this appeal. If, as we have found, the Tribunal were right in initially focusing on the date of the Originating Application, were they wrong, as the Appellants submit, to attempt to cover their position by proceeding to rule on the construction of clause 4.8 of the National Agreement and its applicability to Mr Cook? In our judgment, they fell into error in this respect. It is accepted by both parties that the jurisdiction of the Tribunal could not be extended by the agreement of the parties. In announcing their decision on this issue which was extraneous to that raised by the Originating Application, they exceeded their jurisdiction and their ruling cannot be binding on the parties.

	For the reasons we have given above, the appeal will be allowed but only to the extent of the Employment Tribunal’s ruling on the applicability of the National Agreement, dated the 21st March 1997, to Mr Cook’s employment.