Appeal No.	 EAT/398/02

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 October 2002

Before
HIS HONOUR JUDGE J McMULLEN QC
MR D NORMAN
MRS R A VICKERS

MR S A EDWARDS	APPELLANT

MARCONI CORPORATION PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR S A EDWARDS
THE APPELLANT
IN PERSON	

JUDGE J McMULLEN QC:

1	This is an appeal by the Applicant from a decision of a London Central Tribunal sitting on 11 and 12 February 2002, chaired by Miss A.M. Lewzey.  The Applicant made claims relating to provisions under the Employment Relations Act 1999 and the Employment Rights Act 1996, principally about time off.

2	In a Decision with Extended Reasons promulgated on 5 March 2002 the Tribunal dismissed the Applicant’s claims and ordered him to pay the Respondent’s costs of £10,000.

3	In proceedings before this Tribunal constituted as Miss Recorder Elizabeth Slade QC, Ms K. Bilgan and Mr J. Hougham CBE, on 23 September 2002, the Applicant was represented by counsel on a preliminary hearing.  At that hearing one outstanding issue was not raised by counsel, but was noted by Miss Slade and it was felt appropriate for there to be a re-listing of this aspect of the appeal.  The other aspects of the appeal, were dismissed or, in respect of the order of costs, sent to a full hearing.  

4	Mr Edwards today indicated that, by an error of his legal team, this matter was not put before Miss Slade’s Tribunal.  We have therefore heard this appeal, although we do not have as yet a copy of the judgment which she gave.  

5	The Applicant’s claim arises under Section 50 of the Employment Rights Act 1996.  Mr Edwards tells us that this is the first case that there has been.  Section 50 allows for an employee to take time off from his or her working hours for the purposes of performing official duties;  in this case of a Justice of the Peace.  The qualification to that right is set out in Section 50(4) which provides this:

“(4) The amount of time off which an employee is to be permitted to take under this section, and the occasions on which and any condition subject to which time off may be so taken, are those that are reasonable in all the circumstances having regard, in particular, to -
(a)	how much time off is required for the performance of the duties of the office … and how much time off is required for the performance of that particular duty,
(b)	how much time off the employee has already been permitted under this section or sections … and
(c)	the circumstances of the employer’s business and the effect of the employee’s absence on the running of that business.”

6	The Applicant claimed that he had not been permitted to take time off to attend his duties on the Bench on 20 August 2001.  The Employment Tribunal was concerned with the application of Section 54(4)(c).  Other subsections appear not to have been argued before it.

7	The Respondent’s case was that the Applicant requested permission to attend on Monday 20 August by an e-mail sent on Thursday 16 August to his Manager, Stuart Cooper.  Mr Cooper explained that he could not agree to allow the Applicant time off at such short notice.  The Respondent contended that the Applicant had booked holiday for 17 days from 22 August until 30 September.  Mr Cooper said that he wanted the Applicant to concentrate on securing the completion of three properties which he was handling before his holiday.  Before us the Applicant accepts that he was indeed engaged upon that task, and that he was indeed due to take a substantial period of time off, some of it by way of holiday, although he disputes certain of the details.  

8	The Employment Tribunal in rejecting his claim made the following findings.  August 20 2001 was immediately prior to Mr Edwards’ long holiday.  It was at a time when the Respondent was selling off properties because of the take-over of part of his business by British Airways.  Because of the situation within Marconi the workforce was depleted and Mr Edwards only worked on a small team.  Mr Edwards was to be absent on 21 August in connection with his County Court action against the Respondent.  In these circumstances the Tribunal was of the view that it was reasonable, taking into account the circumstances of their business, and the effect of Mr Edwards’ absence on the business to refuse him time off, particularly in the light of the evidence that it was within Mr Edwards’ power to swop the dates allocated to him to sit as a JP with other JPs.  

9	Mr Edwards in his appeal today raises criticisms of factual inaccuracies by the Tribunal.  For example, the Tribunal has confused British Airways with British Aerospace and it has confused the take-over by British Aerospace in terms of time as occurring in 2001 when he tells us it was 1999.  The Tribunal has also confused, he contends, the depletion of the workforce but he does accept that the team had been reduced by at least one person on the day in question.  

10	Those criticisms seem to us to be small matters of detail and do not detract from the force of the general finding by the Tribunal that, paying attention to those factors set out in the subsection, the time off request was reasonably refused.  Mr Edwards was going on a long holiday, he was required to work on the selling-off of properties.  He was to be absent, at least part of the day on the day after the requested day, and he was able to swop the sitting dates.  Therefore, in our judgment, the Tribunal came to a conclusion of fact based upon a balance, as required by the subsection, of the interests of the employer’s business and the impact of the employer’s absence on it as against the Applicant’s right under Section 51 to take time off.  No error of law has been committed by the Employment Tribunal and we dismiss the appeal.

11	Mr Edwards tells us that this is the first case to have arisen and he is principally interested in paving the way for, as he puts it, 33000 other Magistrates who freely give of their time in order to administer a huge part of justice in this country.  We doubt whether our decision will have such an impact, since each case must be determined on its merits by reference to such concepts as reasonableness and an examination of the particular circumstances.