Appeal No.	 EAT/156/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 June 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR R N STRAKER
MR G H WRIGHT MBE

THE HOME OFFICE	APPELLANT

MR R PLEDGER & MR R JONES	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR T BRENNAN
(of Counsel)
The Treasury Solicitor
Queen Anne's Chambers
28 Broadway
London
SW1H 9JS	
For the Respondents	MR R J CARTWRIGHT
(of Counsel)
Messrs Irwin Mitchell
West Brow
9 Arkwright Road
Hampstead
London
SN3 6AB	

	JUDGE PETER CLARK:   This is an appeal by the employer, the Home Office, against a declaration made by the Southampton Industrial Tribunal in a decision promulgated with extended reasons on 16th December 1996, following a hearing held on 21st November 1996, under ss.11 and 12 of the Employment Rights Act 1996. The two respondents, Messrs Pledger and Jones, were at all relevant times employed by the appellant as Immigration Officers at Portsmouth.

The facts
It was common ground that at Portsmouth for a period of 18 years since the port there opened, it has been the practice not to commence the early-day shift before 7 a.m..

	Following a report by Messrs Touche Ross in 1992/3 management sought to introduce starting times earlier than 7 a.m.. It would seem that in January 1995 the appellant sought to commence consultation with the relevant trade union, to which both respondents belonged, concerning the introduction of compulsory early shifts and new shift patterns at Portsmouth. By a letter dated 28th January 1995 the union indicated that it had to decline the appellant’s invitation to discuss matters.

	On 17th January 1996, following a review of staffing levels carried out in October 1995, the appellant wrote again to the union setting out its proposals for new shift patterns and staffing levels to take effect from Sunday 18th February 1996. The union’s comments were invited.

	A meeting took place between management and union on Friday, 22nd March 1996 at which management took the position that it would schedule pre-7 a.m. starts on a compulsory basis, provided that these were operationally necessary and taking reasonable account of the circumstances of individual officers. The parties discussed the issue of operational necessity at that time, and management agreed to the introduction of the union’s alternative proposals for the duty chart, subject to certain conditions which included any and all additional requirements for early coverage must be provided by the scheduling of compulsory pre-7 a.m. starts at management’s discretion which all staff would be liable to work in accordance with national arrangements and the national compensatory package. We should record that the union do not accept that pre-7a.m. start times are operationally necessary.

	Meanwhile, during March 1996, the respondents took a stand on the matter and refused to work early starts before 7 a.m.. They were suspended without pay. By letter dated 19th March 1996 they asked precisely which paragraph in their terms and conditions of employment, to be found in the Civil Service Pay and Conditions Code [“the Code”], they had broken. No substantive answer was received until 17th October 1996, when by letter the appellant relied upon paragraph 2913 of the Code. Paragraph 2913 reads as follows:

“Changes in patterns of working
2913 Departments should consult with their appropriate Trade Union side on the introduction, alteration and cessation of shift working, but, if agreement cannot be reached, and work requirements make it necessary, changes may be made at the discretion of management.”

The complaints
There is no material distinction between the cases of the two respondents. We shall take the case of Mr Pledger.

	He presented an Originating Application to the Central Office of Industrial Tribunals on 30th April 1996. He described his complaint in this way:

“Failure to provide Statement of Terms and Conditions of Service. Section 1, Employment Protection Act 1978”

	The relevant sections of the 1978 Consolidation Act are now to be found in Part I of the Employment Rights Act 1996. We shall refer to the 1996 Act.

	On 3rd July 1996 the appellant entered a Notice of Appearance relying upon a statement of terms and conditions of employment sent to Mr Pledger on 19th June 1996 [“the Statement”].

	The Statement, headed “SUMMARY OF THE PRINCIPAL TERMS AND CONDITIONS OF APPOINTMENT” provides, inter alia:

 “4. HOURS
You will normally work a 5 day week of 37 hours excluding meal breaks.”

	Subsequently, both the Originating Application and Notice of Appearance were amended, those amendments being settled by Counsel who appeared below and before us.

	For the employees it was averred that the Statement did not comply with what are now sections 1 and 2(4) of the Employment Rights Act 1996, in that contrary to s.1(4)(c) it failed to state the terms and conditions relating to the complainant’s hours of work. A further complaint under s.1(4)(a) was not pursued before the Industrial Tribunal. It was further alleged that such omission rendered the statement of terms incomplete and/or inadequate in that it failed to reflect the terms of the employee’s contract of employment with the employer as to hours of work. Accordingly, the complainant sought a determination, pursuant to ss.11(1) and (2), of the particulars which ought to have been included in the Statement so as to comply with s.1(4)(c).

	For the employer it was contended, by way of amendment, that the Statement constituted an adequate statement of particulars.

Written particulars of employment
The scheme of what is now Part I of the 1996 Act dates back to the Contracts of Employment Act 1963. The precise scope of an Industrial Tribunal’s powers when considering a reference brought under s.11 has led to considerable judicial debate. see e.g. Mears v Safecar Security Ltd [1982] ICR 626.

	The statutory framework was considered by this appeal tribunal (Wood J presiding) in Eagland v British Telecommunications PLC [1990] IRLR 328 in a judgment upheld by the Court of Appeal [1993] ICR 644. For present purposes, the following principles are relevant:

(1)	s.1 divides the terms and conditions there identified into mandatory and non-mandatory terms. An example of a mandatory term is to be found in s.1(3)(a); the names of the employer and employee. Those details must appear in the written statement of terms and conditions of employment. However, the provision contained in s.1(4)(c) with which we are here concerned; any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours), are non-mandatory. That is to say, if there is no agreement, express or implied, between the parties in relation to that item, then ‘no agreement’ should be recorded in the written statement under that heading.

	It appears that below Mr Brennan conceded that the term contended for by the respondents was mandatory. By that we understand him to mean that if such a term existed it ought to have appeared in the Statement. His case was and is that no such term existed.

(2)	Upon a reference under s.11, where the complaint is that the particulars given are inadequate or inaccurate, it is open to the tribunal to construe the relevant term of the contract of employment, and if it concludes that the statement is inaccurate, to substitute the true term of the contract. Alternatively, if it concludes that the statement is accurate, it will confirm it and dismiss the reference.

The issue
The Industrial Tribunal identified the issue before it as being whether the appellant could require the early day shift to commence earlier than 7 a.m.. We understand that to mean that if the tribunal found that the contract provided for a start time not earlier than 7 a.m., it would amend the particulars contained in the Statement under s.12(2)(b); conversely, it would confirm the particulars given under s.12(2)(a).

The Industrial Tribunal decision
In the result the tribunal made a declaration in favour of the complainants. It declared that the written particulars should include a condition that while employed at Portsmouth they could not be required to commence the early day shift before 7 a.m.. Its reasoning was as follows:

(1)	Paragraph 2913 of the Code referred merely to shift patterns and not to a start earlier than 7 a.m. for the early day shift. (paragraph 36).

(2)	Mr Pledger did not allege a change in the shift pattern, which all parties agreed could be made by the appellant. (paragraph 29).

(3)	The appellant did not seek to rely upon paragraph 2913 of the Code until a late stage (their letter of 17th October 1996). (paragraphs 31 and 34).

(4)	The Touche Ross report proceeded on the basis that throughout the service an early start before 7 a.m. was voluntary; nothing was ever said to the contrary. (paragraph 32).

(5)	It was the practice throughout the country that the early start would be manned by volunteers. (paragraph 35).

(6)	Accordingly, the appellant could not rely upon paragraph 2913 as having the force of a contractual term for which the appellant contended. (paragraph 36). 

	The tribunal found that there was contractual term in the respondent’s terms and conditions to the effect that they could not be required to commence the early day shift before 7 a.m. and, in the alternative, this overrode any contractual term in paragraph 2913.

The Appeal
Mr Brennan submits on behalf of the appellant that the construction of contractual terms is a question of law. That must be right. The short question for us therefore is what is the relevant term of the contract?

	He submits that Paragraph 2913 gives the appellant the right to alter shift patterns in certain specified circumstances, that is, where consultation with the appropriate union has taken place, no agreement has been reached and work requirements make it necessary.

	The question then is whether a change in compulsory shift starting time is an alteration of shift working. The Industrial Tribunal said not; Mr Brennan argues that it is.

	Further, he submits that in construing the relevant term the Industrial Tribunal took into account irrelevant matters, in particular, the fact that the appellant did not refer to paragraph 2913 of the Code until a late stage. That is immaterial, he argues; either the paragraph means what the appellant contends it means, or it does not. No question of estoppel or waiver here arises.

	In addition, he submits that the reference to the Touche Ross report is misplaced. Apart from the fact that it did not relate to Portsmouth, but four other sites, the fact that early shifts were manned by volunteers did not determine the question as to whether a contractual right existed under paragraph 2913 of the Code to alter starting times. That is a question for the tribunal; not Touche Ross.

	He accepts that in practice, for the past 18 years, the early morning shift at Portsmouth has not started before 7 a.m. compulsorily, but that cannot override the express term of the written contract.

	He also addressed to us a short argument based on the mobility clause in the contract. We have not found those submissions of assistance in carrying out our task of construction.

	For the respondents, Mr Cartwright submits that the provision contained in paragraph 2913 is fettered by overall considerations of reasonableness. Management at Portsmouth had accepted a term, as the Industrial Tribunal found, that the early day shift would not start before 7 a.m.. Even if there is an express contractual power to alter shift patterns, it is not an unlimited one. It is qualified by a need for consultation and for a determination by management of operational requirements before exercising its discretion.

	It was open to the Industrial Tribunal to find as fact that there was an agreement between officers and local management that pre-7 a.m. starts were not compulsory. He relies upon paragraphs 14 and 20 of the reasons. There was, he submits, an agreed variation at a local level.

	He also submits that a written contract is not conclusive as to the actual contractual terms operating in practice and understood by both parties as so operating.

	Further, he argues that no case was made out by the appellant for operational necessity requiring a change in shift start time. It was not enough that the appellant relied upon cost effectiveness.

	On their findings of fact, the tribunal was entitled to conclude that even if paragraph 2913 had contractual force, it was to be read with the proviso that those employed at Portsmouth would not be required to begin the early day shift before 7 a.m..

Conclusion
In our judgment the submissions advanced by Mr Brennan are plainly correct. Paragraph 2913 of the Code formed part of the express terms of the contracts of employment. As a matter of construction management reserved to itself the contractual right to alter shift working, which must include the timing of shifts in given circumstances as Mr Cartwright concedes. The fact that as a matter of practice early day shifts had always started compulsorily no earlier than 7 a.m. cannot amount to term of the contract imported by custom and practice in addition to or substitution for the express term. Nor can it override the express term, as again Mr Cartwright accepts. It is axiomatic that a term expressly agreed between the parties is paramount. There is no express finding by the Industrial Tribunal, nor could there be, that a variation had taken place. A variation of a contractual term requires as a starting point that the parties have directed their minds to the term which is to be varied. There is no evidence or finding by the Industrial Tribunal that this process ever took place. The fact that paragraph 2913 was not mentioned until late in the day is irrelevant; either it regulates the question of start times or it does not. In our judgment, it does.

	We remind ourselves that this is a reference under s.11; it is not a County Court claim by the respondents for breach of contract. Whether or not the appellant had made out an operational requirement for altering the early day start time goes to the second cause of action, not the first. The only question for us is whether paragraph 4 of the Statement accurately reflects the relevant term of the contract, if any. In our judgment it does. The Industrial Tribunal was wrong to find otherwise. Accordingly this appeal must be allowed, the declaration set aside and these complaints must be dismissed.