Appeal No.	 EAT/30/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 February 2002

Before
THE HONOURABLE MR JUSTICE HOLLAND
MR K EDMONDSON JP
MISS A MACKIE OBE

MR RICHARD GRANT	APPELLANT

KENT COUNTY COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A ELESINNLA
(of Counsel)
Instructed by:
Mr D Carson
Law for All
PO Box 230
Brantford TW8 9FL	
For the Respondent	MR M SHULMAN
(of Counsel)
Instructed by:
Messrs Rollingsons
Solicitors
Lonsdale Chambers
27 Chancery Lane
London WC2A 1NG	

MR JUSTICE HOLLAND

1	This is an appeal from the Decision of an Employment Tribunal sitting at Ashford, which Decision together with Extended Reasons, was sent to the parties on 10 November 2000; the issue is breach of contract.  

2	The circumstances giving rise to the matter are as follows. From 5 July 1993 to 18 August 1998 the Appellant, Mr Richard Grant was employed by the Respondents in their Social Services Department as Manager of the County Out of Hours Service.  The original terms of his employment appear from a letter of appointment of 30 April 1993.  On 11 October 1994, there was a further letter confirming his position as Locality Manager, again setting out his terms of employment.  So far as relevant that letter indicates that his normal hours were to be thirty seven a week, that he was to be salaried, and that the detailed terms of his employment were to be found in the Kent Scheme of Conditions and Service, otherwise known as “the Blue Book”.  The matter came before the Employment Tribunal on the basis of an application of 16 November 1998.  By way of that application, the Appellant alleged unfair dismissal and breach of contract.  For the purpose of that application, and for the hearings before the Employment Tribunal, the Appellant was unrepresented.  This was unfortunate because, as is so often the case, with the unrepresented applicant, the approach was scatter-shot and the Employment Tribunal obviously had difficulty in identifying and focusing upon the real issues.  

3	In the event, the findings of the Tribunal were:
“(1)	The Applicant was fairly dismissed.  His claim for unfair dismissal is dismissed.
  (2)	The applicant’s claims for breach of contract are dismissed.
  (3)	The Applicants application to strike out the Respondent’s Notice of Appearance is refused.
  (4)	The Applicant’s application to add a new claim of unlawful discrimination on the ground of disability is refused.”

A similar scatter-shot type of Notice of Appeal ensued.  Then the Appellant sensibly listened to the obviously good advice given him to him by Counsel acting under the ELAA Scheme, and for the purpose of the preliminary hearing, he, with the aid of that Counsel, simply focused on the claim for breach of contract, contending that the Employment Tribunal had erred in law in dismissing him.  That argument having found favour with this Tribunal at that hearing, we today have had an appeal limited to that one head of complaint that has been well argued by Counsel on both sides.  

4	Turning to that head of complaint, its genesis appears from part of the Applicant’s initial application.  In that he asserted as follows:
“I was employed by Kent County Council Social Services Department from July 1993 until August 1998, as manager of the County Out of Hours Service.  Though essentially a service providing the Social Services function in emergencies outside office hours, it also has staff on duty during normal office hours to provide administration and liaison with day services.  In addition it provides the Appropriate Adult Service for young people in custody, 24 hours a day.  As part of my duties and in addition to my contracted 37 hours, I was available as the duty manager on call.  
Initially this meant I was available either in the office or at home for 24 hours a day, 7 days a week.  My position gradually improved in that the task of being available on call was shared and my working hours therefore reduced.  In the last two years or so I was on call an average of 64 hours per week (still in addition to my normal 37 hours).  I have not however received any payment for being on call, despite the fact that such payments have been made to others who were available on call for Social Services.  The Operational Manager for the Service, Jenny Fairweather, also shared these long hours and deputised for me when on duty.  She similarly received no payments for work beyond her core 37 hours.”

How then did the Employment Tribunal approach the issue thus raised?  As we have already pointed out, the situation was not as clear for that Tribunal as it has been for us.  All sorts of other matters were raised, and the whole case had, for various reasons, a somewhat unhappy forensic history.  

5	Turning to the way in which the Employment Tribunal finally approached the matter, it would appear to be as follows: it seems plain that the Tribunal thought that this allegation of breach of contract was inherently unarguable.  They were entirely satisfied that there was no express entitlement to any further monies over and above the salary.  It is also plain that they were satisfied that there was no scope at all for the implication of a term, such as would allow for any such recompense.  They pointed out that for that Tribunal to imply any such term, would effectively involve it in, as it were, making for the parties an agreement that they themselves had never chosen to make.  

6	Given the clear stance of the Employment Tribunal, it would seem that they decided to spend little or no time finding facts.  Apart from finding the basic facts, such as are already indicated in this judgment, they spent no time at all in looking further into the contentions of the Appellant, so as to decide, for example, what hours he had put in out of normal office hours, there being a plain issue as to such.  Furthermore, it did not trouble itself to look at the proposed ambit of an agreement which provided for a 37 hour commitment.  What 37 hours? During which particular periods?  How was that to be calculated? What hours were perceived to be, if anything, additional to that period?  

7	Turning them from the position of the Employment Tribunal to the case as presented to us, in opening the matter, Counsel for the Appellant has drawn attention to the genesis of the present problem and that arises in section 4 of the Blue Book.  By section 4(1) provisions are made as to office hours.  It is appropriate to go first to 4(1)(b) which provides:
“APT and C staff are normally conditioned to a 37 hour working week”
And then 4(1)(d):
“Staff should not be contracted to work hours of more than the standard 37 a week unless this is unavoidable for the proper performance of the job.  Where such hours are to be worked, the officer shall receive either overtime payments, in accordance with section 3(12) of this scheme, or such other payments or arrangements as may be determined locally”

8	We were then taken by Counsel to look at section 3(12) from which it became apparent that there was no express entitlement, relevant to this matter, for payment by way of overtime.  Indeed, not only would that appear to be the effect of that provision of the Blue Book, but adverting to what the Appellant himself is complaining of, it is plainly not a matter that comes under the heading “Overtime”, it is a complaint that relates to a different concept.  

9	Going back then to the provisions of the Blue Book, Counsel at that stage in his argument, was contending that there were no other payments or arrangements as had been determined locally, but submitted that there was a plain strong moral entitlement, on the part of the Appellant, to further recompense; so strong was that entitlement that the officious bystander, the fons et origo of any implied term, would have said that his client was entitled to further payment.  In those circumstances, he submitted, there was here a good basis for recompense by reference to an implied term and by way of its ruling to the contrary, the Employment Tribunal was wrong.  

10	At this stage in the argument, it was plain that there were substantial difficulties in the way of Counsel for the Appellant.  First, there was this virtual absence of relevant fact-finding on the part of the Employment Tribunal.  Second, assuming that the matter were to be sent back for fact finding, and assuming further that this exercise served to endorse the Appellant’s factual contentions, how then could then a term be implied that would be sufficient to sustain enforcement by the Employment Tribunal?  Let it be supposed that the officious bystander, the pillar of the implied term, would have expected there to be payment for out of hours activity by the Appellant: at what rate, and over what hours?  In this context, the Employment Tribunal itself had noted the Appellant inviting it to:
 “decide what payment should be made to him as if he had reached agreement with the Respondent”

That invitation aptly reflected the absence of any specific agreement, but the exercise it contemplated was not one for an Employment Tribunal, nor indeed, for any Court.  It is for neither body to make agreements, but to give force to any such as are made, or can be implied.  

11	So much for the way the matter initially developed before us, but in the event, in the course of argument, attention was drawn by a member of this Tribunal, Miss Mackie, to a further provision of the Blue Book, not in terms considered by the Employment Tribunal, nor indeed, cited by the parties.  This is to be found in section 3 of the Blue Book, paragraph 11(b).  The heading for paragraph 11 is “Stand By Duty Allowance”.  11(b) includes apparent provisions for payment to persons other than social workers (and on grades higher than F) of standard rates of allowance per session when on stand-by.  The citing of this passage invited rhetorical questions.  

12	The first question was as to the grade of the Appellant; the answer there is that he is Grade H, and so that, on the face of it, he is, at least by grading, caught by this provision.  That led on to pertinent questions such as “What is the difference between on-call and stand by?  Further, if there is no difference, why did this not cover the Appellant?”.  These questions having come up in the course of argument, and not having so far been ventilated before the Employment Tribunal, nor indeed, in any exchange of arguments, it is perhaps not surprising that thus far, no clear answers had been forthcoming, albeit the Counsel for the Appellant, not surprisingly, says that here there could be an express basis for contractual payments to the Appellant, for that which he did out of office hours.  

13	This matter having been raised, we are in a position to arrive at our decision.  Our decision is as follows:
(1)  We cannot presently rule out entitlement, on the part of the Appellant, for sums as express entitlements, provided for by section 3(11)(b).
(2)  We cannot therefore endorse the Decision of the Employment Tribunal that there was no breach of contract, and we must allow this appeal.  
(3)  That said, we cannot, on the material presently before us, rule that there was such entitlement arising by reference to section 3(11)(b).  

The matter must be remitted to the Employment Tribunal, preferably differently constituted, for a rehearing of this head of complaint.  

14	The precise ambit of that hearing must be for the Employment Tribunal, but we respectfully suggest that it will include the following:

(a)  What activities, respectively between which hours, were sought to be covered within the period of thirty seven hours, stipulated in the letter of 11 October 1994 and in the Blue Book? By reference to that period, did the party seek to cover all the Appellant’s activities, or only certain thereof?

(b)  What are the facts relating to the Appellant’s on-call activities?  Are they as he contended for in his application, or are they to be described in some other and different terms?  What was his commitment to out of hours activities on a weekly basis?  How was that commitment dovetailed with that of Mrs Fairweather?

(c)  In the light of the foregoing, to what extent, it at all, are the provisions of section 11(3)(b) applicable to, and supplementary of, the Appellant’s contract of employment?  

15	Two further points merit mention before the close of this judgment.  First, the Employment Tribunal tended to place some weight on what the Appellant himself said, or conceded.  As pointed out in argument, such evidence can only have limited value, and not least because the Appellant has been unrepresented.  The contract of employment and its terms have to be found on an objective basis.  The Appellant’s views can have no more than some evidential value.  

16	Second, this Decision of this Tribunal is directed at a possibility that cannot presently be excluded, that the Appellant’s claim can succeed by reference to the express terms of his contract.  Had the matter depended solely upon the contention that, absent an express term, there was entitlement as for a breach of implied term, then this appeal would have failed.  The officious bystander may have pointed to a moral entitlement to recompense for out of hours activities, he could not have pointed to an implied basis for the calculation of such recompense, so that an enforceable implied term would result.  

17	However, given that full fact finding is contemplated as a result of our remission to the Employment Tribunal, we would not exclude the existence of an implied term from that remission.  The development of a viable basis, for a case based on implied term, would presently surprise us, but it could be that the machinery provided by section 3(11)(b) falls to be considered as and when an implied basis for calculating recompense is in issue.  

18	At all events, it would seem wrong at this stage, to restrict the ambit of the approach of the Employment Tribunal to the essential issues.