The Claimant was employed by the Respondent as a Support Worker assisting disabled persons in the community. He had to travel from place to place using his car. At the beginning of a period of work he would drive directly from his home to his first assignment, and at the end of a period of work he would drive directly home from his last assignment. He believed that these periods constituted working time, having regard to the decision of the European Court of Justice in [Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL & Anr ]()[2015] ICR 1159. His claim to the ET did not state that unlawful deductions had been made - instead he argued that he was entitled to time off in lieu according to the Respondent's Extra Hours Procedure. The Employment Judge held that these periods were indeed working time and went on to hold that the Respondent had made an unlawful deduction from the Claimant's wages. It is this finding about remedy that is the subject of the appeal.

The EAT allowed the appeal. The Claimant had advanced no claim for unlawful deduction from wages; there was no application for permission to amend; and it followed that the Respondent's appeal must be allowed and the finding of unlawful deduction from wages set aside. In any event the Employment Judge erred in law in determining that the Claimant was contractually entitled to additional wages because his travel from home to first appointment and from last appointment to home was "working time" for the purposes of the Working Time Directive and Working Time Regulations.  His conclusion could not be reconciled with the express terms of the Claimant's contract.

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Appeal No. UKEAT/0325/16/DM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 12 May 2017

Before

HIS HONOUR JUDGE DAVID RICHARDSON

(SITTING ALONE)

THERA EAST (APPELLANT)

VALENTINE (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR CHARLES CROW (of Counsel)
Instructed by:
Anthony Collins Solicitors LLP
134 Edmund Street
Birmingham
B3 2ES

For the Respondent
MR VALENTINE (The Respondent in Person)

PRACTICE AND PROCEDURE - Bias, misconduct and procedural irregularity

CONTRACT OF EMPLOYMENT - Implied term/variation/construction of term

The Employment Judge erred in law in holding that the Respondent had made an unlawful deduction from the Claimant's wages. The Claimant had not advanced any claim of unlawful deduction from wages.

In any event the Employment Judge erred in law in determining that the Claimant was contractually entitled to additional wages because his travel from home to first appointment and from last appointment to home was "working time" for the purposes of the Working Time Directive and Working Time Regulations. His conclusion could not be reconciled with the express terms of the Claimant's contract.

1. This is an appeal by Thera East ("the Respondent"), a registered charity, against a Judgment of the Employment Tribunal (Employment Judge Ferris sitting alone at the East London hearing centre) dated 26 August 2016. By his Judgment the Employment Judge held that the Respondent had made an unlawful deduction from the wages of Mr John Valentine ("the Claimant").

1. The Claimant was employed by the Respondent as a Support Worker assisting disabled persons in the community. He had to travel from place to place using his car. At the beginning of a period of work he would drive directly from his home to his first assignment, and at the end of a period of work he would drive directly home from his last assignment. He believed that these periods constituted working time, having regard to the decision of the European Court of Justice in [Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL & Anr ]()[2015] ICR 1159. The Respondent disagreed. The Employment Judge held that these periods were indeed working time, and I am not concerned with that finding on this appeal.

1. The Employment Judge went on, having found that the periods constituted working time, to hold that the Respondent had made an unlawful deduction from the Claimant's wages. It is this finding about remedy that is the subject of the appeal. Mr Charles Crow, who appears for the Respondent on this appeal, argues that (1) there was no claim for unlawful deduction from wages before the Employment Tribunal, hence no jurisdiction to determine such a claim and (2) in any event, the Employment Judge's finding that there was an unlawful deduction from wages was wrong in law or at the very least insufficiently reasoned. The Claimant, who appears himself today, resists the appeal, principally on the second of these grounds.

1. The Claimant was employed by the Respondent with effect from 5 February 2015. His written contract of employment included the following terms:

"Hours of Work

10. You will be paid for 2033.57 hours per year, which includes your annual leave entitlement. You are expected to work a total of 1815.07 hours per year. These hours are inclusive of waking night responsibilities. (Sleep-in periods worked are not included in this total). The conditions of the Post require that you will work flexibly over a 24 hour period, and in accordance with the needs of the people we support and Thera East at all times, including undertaking sleep in responsibilities. Thera East reserves the right to require you to vary your working times and rota patterns on a temporary or continuing basis as the needs of the people we support or the business dictates.

11. The working hours specified do not include time taken to travel from home to your first place of work and from your last place of work to your home.

12. Any hours worked in excess of 1815.07 hours per year will generally be taken as time off in lieu. In exceptional circumstances, or where the needs of the business dictate, you may be required to work additional hours for which compensatory time will be given. Pay may be given following approval by your line manager if you are required to work complete rotas in exceptional circumstances in line with the Extra Hours Procedure. …

14. The Post requires that you work such hours as may reasonably be required for the proper performance of your responsibilities."

1. The Extra Hours Procedure confirmed what paragraph 12 of the contract stated: as a general rule, any hours worked in excess of 1,185.07 would be taken as time off in lieu. There were some circumstances in which payment could, at the Respondent's discretion, be made for working additional hours, but they were exceptional and depended upon particular management requirements.

1. The Claimant, having learned of Tyco, engaged in correspondence with the Respondent. The Respondent did not accept that Tyco had any application to the Claimant's circumstances. He believed that it did, and he brought Employment Tribunal proceedings. In his ET1 claim form the Claimant did not tick the box appropriate to a claim for deduction from wages. He said that he should be given credit in time for the additional journeys "as I feel this is now classed as working time". In the light of his contract of employment, it is understandable that he did not claim monetary payment.

1. When his claim was considered by an Employment Judge on paper, it was listed for a one-hour hearing, and he was directed to set out in writing what remedy the Employment Tribunal was being asked to award. In response, the Claimant said that he was asking the Respondent "to acknowledge and allow time credit for the time spent travelling to my first appointment and returning from my last appointment". He also sought mileage expenses "if appropriate".

1. The hearing before the Employment Judge was listed only for an hour. He considered the evidence in commendable detail, as appears from the excellent note prepared by Ms Dabek, the solicitor who represented the Respondent. He reserved judgment and gave substantial reasons for his finding that the journeys in question constituted working time for the purpose of the Working Time Directive ("the Directive") and the Working Time Regulations 1998 ("WTR").

1. It is clear that at the hearing before the Employment Judge the Claimant pursued the two remedies that he had sought in his ET1. The Employment Judge, having found that the journeys in question constituted working time, did not award either of those remedies. Rather, he found that there was an unlawful deduction from wages. He quoted the latest IDS Employment Law handbook on wages, March 2016, as follows:

"The fact that time spent travelling between a worker's home and a place where an assignment is carried out must be counted as a working time for the purposes of the working time directive may allow workers whose contract provides a set number of working hours each week to argue that they are in fact working in excess of those hours and should be entitled to overtime pay as a result. Unless the contract excludes any entitlement to overtime pay, or provides for an alternative method of calculating it, it seems plausible that the worker should be entitled to overtime pay at least equal to the national minimum wage rate."

1. Having found that the journeys constituted working time for the purposes of the Directive, he continued as follows:

"30. I accept that this on its own does not mean that the Respondent is liable to pay for this working time because that is not the purpose of the Working Time Directive. However as suggested by the IDS handbook on Wages, the Claimant who is a worker whose contract provides a set number of working hours is able to contend that he is working in excess of those hours, taking into account the time spent which I have found is working time but which is not acknowledged by the Respondent. On an indicative basis this approximates to 90 minutes a week. That is time which is not but should be acknowledged as time counting towards the annual number of hours which the Claimant is required to fulfil in order to meet the obligations of his job.

31. On the basis of the information which I have received so far I can only address this issue in principle. I am not able to identify particular amounts or figures in respect of this principled entitlement. By reference to the total hours worked by the Claimant taking into account my decision in this case and the actual amounts which the Claimant has been paid it should be possible to calculate the shortfall, representing an unlawful deduction of wages, which shortfall the Claimant is entitled to require the Respondent to make good."

1. On behalf of the Respondent Mr Crow says that no claim for unlawful deduction from wages under Part II of the Employment Rights Act 1996 ("ERA") was pleaded by the Claimant nor was any such claim advanced at the hearing.

1. As to what occurred at the hearing, he relies on Ms Dabek's account. I can summarise this as follows. When she cross-examined the Claimant he confirmed that he was not claiming for pay as the Respondent's procedure was to give time off in lieu. She submitted to the Employment Judge that this was not a remedy he could award, and when the Employment Judge raised the question of unlawful deduction from wages she submitted that no such claim had been pleaded and the Claimant had indicated in his evidence that he was not bringing a claim for pay. The Employment Judge asked the Claimant about a claim for unlawful deduction from wages, but he said that he did not really understand and confirmed that he wished to receive time off in lieu. The Employment Judge raised the matter again with Ms Dabek. She repeated that this was not how the Claimant had pleaded his case and submitted in any event that there was no contractual entitlement to pay for additional hours.

1. The Employment Judge was asked by the Employment Appeal Tribunal to comment on the Notice of Appeal and later on Ms Dabek's note of the hearing. Understandably, given the shortness of the hearing and the busy lists of an Employment Judge at the East London hearing centre, he had no clear recollection of the hearing. He said that when the ET1 had been considered on paper by another Employment Judge it had been identified as raising a claim of unlawful deduction from wages. The contrary had not been argued in the ET3, and he did not recall the Claimant's case being challenged at the hearing in the way that it was challenged by the Notice of Appeal. While he had detailed Notes of Evidence, he had only a very short note of submissions.

1. Ms Dabek sent her note for the Claimant to consider. He said that he was broadly in agreement with it subject to the caveat that he did not understand the legal intricacies of the discussions that took place directly between the Judge and Ms Dabek. The Claimant does not challenge Ms Dabek's note that he confirmed that he was not claiming for pay because the Respondent's procedure was and is to give time off in lieu.

1. Having considered the papers and the submissions of the parties today, I am quite sure that the Claimant did not advance a claim under Part II ERA. The Employment Judge raised the possibility of such a claim on his behalf, but he did not advance it even then. While the Employment Judge raised the possibility of such a claim with Ms Dabek, she took the point that no such claim had been advanced as well as seeking to answer it on the merits, and the matter was left in that state when the Employment Judge reserved judgment. No application to amend the claim form was made or granted.

1. These conclusions follow from Ms Dabek's note. They are consistent with the Claimant's broad agreement with Ms Dabek's note and with what the Claimant has said to me today - he says that he claimed time off in lieu because that was, as he puts it, the Respondent's preferred method of payment. The Employment Judge has no clear recollection or note to any other effect.

1. I am sympathetic to the position of the Employment Judge, who had found the journeys in question to amount to working time and was endeavouring to consider on behalf of a litigant in person whether there was any applicable remedy; but, in my judgment, he was not entitled to make a finding under Part II ERA when that claim had not been advanced by the Claimant either before or at the hearing.

1. The Employment Judge appears to have thought that the ET1 advanced the claim. He noted that an Employment Judge who had looked on paper at the ET1 thought that it might do so, but in fact, however, the ET1 did not advance the claim, and the Employment Judge who had looked at the papers gave a direction for the Claimant to set out the remedy he was seeking, in response to which he did not seek wages in any form. The Respondent is not to be criticised for failing to take any point on a wages claim in its ET3, for no such claim had been advanced.

1. On well established principles it is not for the Employment Tribunal to find on the Claimant's behalf in relation to a claim not advanced by the Claimant (see for example Bradford Hospitals NHS Trust v Al-Shabib [2003] IRLR 4 at paragraph 13). An Employment Tribunal is of course entitled to explore a claim with a litigant in person, as the Employment Judge did here, but if such a claim is to be adjudicated upon it is important that the Employment Judge should address the matter procedurally in an appropriate way. If a Claimant wishes to advance a claim that has not been pleaded, he may ask the Claimant whether the Claimant wishes to apply for permission to amend, and if he does the Employment Judge will have to consider that claim in accordance with established principles. Here, the Claimant had advanced no claim for unlawful deduction from wages; there was no application for permission to amend; and it follows that the Respondent's appeal must be allowed and the finding of unlawful deduction from wages set aside.

1. In any event, Mr Crow submits that the Employment Judge erred in law in finding that there had been an unlawful deduction from wages. A finding that a journey to or from a place of work is working time for the purposes of the WTR and the Directive does not give rise to any statutory right to payment, as the Employment Judge recognised. In this case, there was no room for any contractual entitlement, given the express terms relating to additional payment. The Employment Judge did not grapple with the Claimant's contract of employment. If he had done so, he would have been bound to find that this was so.

1. The Claimant argues that he must be entitled to recompense for time worked; the Respondent is seeking to avoid payment for work genuinely undertaken on its behalf. Either by means of time off in lieu or by means of payment he must have an entitlement to recompense; that, he says, is the natural justice of the case. He acknowledges that Tyco is a direct application only to a worker's rights under the working time legislation, which do not generally include payment, but he says it would be unsatisfactory if the position as to payment were different. He says that he should be entitled to the time in question being added to his rota so that in one way or another payment is made for it.

1. The Employment Judge, taking his lead from the passage in the IDS Handbook, evidently decided that the Claimant had a contractual right to payment for the additional hours worked. He did not, however, explain how that right was derived from the contract, and he did not deal with the key passages in the contract of employment.

1. Paragraphs 10 to 14 of the contract of employment deal with the question of working time and payment for working time. Paragraph 11 appears to me to provide that the working hours for which the Claimant is to be paid do not include time taken to travel from home to the first place of work or from the last place of work to home. Even if it were possible to construe paragraph 11 in some different sense, paragraph 12 plainly states that additional hours are generally to be taken as time off in lieu and the circumstances in which payment will be made are strictly limited (with no exception that could apply to the journeys in question). The suggested route to payment in the IDS bulletin to which the Employment Judge referred is dependent on the terms of an employee's contract of employment, which may address explicitly or by implication the question of whether time travelling to and from a place of work is to be paid and the treatment of any additional working time. To my mind, the provisions of this contract are clear; there is no entitlement to payment of wages in respect of time spent travelling to the first place of work and from the last place of work.

1. While I understand that to a lay person it may seem that the result in Tyco ought to carry over into payment of wages or at the very least time off in lieu, this does not follow. As the European Court pointed out, Tyco remained free in that case to determine remuneration for time spent travelling between home and customers (see paragraph 47 of the judgment). Generally speaking, the Directive and the WTR are not concerned with questions of payment.

1. For these reasons, the Employment Judge's reasoning on the substantive ground would not be able to stand. So, this appeal is not simply being decided on a technicality.

1. I would finally add, for the sake of completeness, that Mr Crow drew my attention to the recent decision of the Employment Appeal Tribunal in [Agarwal v Cardiff University ]()UKEAT/0210/16. If that decision were correct, it might follow that the Employment Tribunal in this case had no jurisdiction in a claim for unlawful deduction from wages to construe the contract of employment or imply terms in it at all. But Mr Crow recognised that in [Weatherilt v Cathay Pacific Airways Ltd]() UKEAT/0333/16 the EAT did not follow Agarwal, relying on binding authorities in the Court of Appeal that had not been the subject of argument in Agarwal. Mr Crow did not press the point further, and I would follow Weatherilt.