Appeal No.EAT/1461/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 January 2001

Before
HIS HONOUR JUDGE D PUGSLEY
MR P A L PARKER CBE
MR H SINGH

LONDON BOROUGH OF WALTHAM FOREST	APPELLANT

MRS MARGARET HEWER	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J GRAY
(of Counsel)
Instructed by:
Head of Legal Services
PO Box 6932
Sycamore House
Forest Road
Walthamstow E17 4UL	
For the Respondents	MR T LINDEN
(of Counsel) 
Instructed by:
Messrs Pattinson & Brewer
Solicitors
30 Great James Street
London WC1N 3HA	

JUDGE D PUGSLEY

1	This is a case where we do not hide the fact that there is a degree of embarrassment for this Tribunal.  Leave has been given for this matter to come before us; we were told by Mr Gray and have no reason to doubt that when he appeared at the application for leave, the case, as it were, was nodded through.  We can find no judgment that was given on that case.  

2	Of course, it is only fair to say that there are always two sides to every question.  Having had the benefit of seeing the Appellant’s Skeleton Argument and Mr Linden’s Skeleton Argument, we cannot rewrite history, and put ourselves in the position of what our view would have been had we not had the benefit of seeing those Skeleton Arguments. Quite simply, we have grave difficulty seeing how this case could succeed. 

3	The facts of the case are set out in the decision and the Chairman noted that the Applicant’s case had mutated somewhat.  Nevertheless, she directed herself as to the relevant law, and went on to make the following findings of fact.  In early 1990 the Applicant had a full time job working for London Transport as a driver.  She approached the Respondents with a view to obtaining a full time job as a driver with them.  The Applicant was interviewed by Mr Thake:

“5 (ii) …..He told her that he could not give her a contract for full-time work at present, but he could give her a contract for a minimum of 20 hours a week and that he would give her sufficient additional hours to make her working week up to 39 hours (which was the full-time requirement) plus additional overtime.  The hours from 20 to 39 would be paid at the ordinary rate and hours beyond 39 at the overtime rate of 1.5
5(iii)  Mr Thake also told the Applicant  that he would expect to be able to offer her a full-time contract of employment in the future.
5(iv) Mrs Hewer accepted Mr Thake’s offer and commenced employment with the London Borough of Waltham Forest on 30 April 1990”

4	She then received a document headed “Contract of Employment” saying:  
“2(a)     You are appointed to the position of part-time passenger services driver with the Department of Works department.
5(d)     Your normal working week is one of a minimum of 20 hours for 40 weeks per year.”
“(iv) From the commencement of her employment, the Applicant always worked, as she and Mr Thake had intended:
(a)      39 hours per week, and 
(b)     a very significant number of overtime hours (in the region of 10 - 20).
Her working hours were reflected in her payslips as follows:
(a)    Basic pay: 20 hours
(b)    Additional hours 19
(c)    Overtime x 1.5 [with the appropriate number]”

(viii)   Mr Thake time-tabled, planned and assumed that the Applicant would work 39 hours per week plus overtime beyond that.  He rota-ed her on this basis without reference to her.  He told the Tribunal, and the Chairman accepts, that if he had thought that the Applicant would only work 20 hours, he would have wanted to time table her for those hours spread over five days.  As it was, he placed her on the rota for 9¾ hours every day of the week.  
(ix)   At the time when he spoke to the Applicant in April 1990 Mr Thake had anticipated that she would be given a formal contract in respect of full-time hours in the relatively near future, but thereafter, in consequence of an enhanced application of equal opportunities policies, the Respondent’s Personnel Department instructed that all full-time jobs had to be advertised externally as well as internally.  In consequence he was unable to give formal full-time contracts to those on part-time contracts as he had anticipated.  From in or about 1994 the Respondent had employed very few new full-timers, because it anticipated a reduction in work which had ultimately come about.  
(x)  The Passenger Services Department lost a contract in spring 1999 and henceforth the Applicant, together with other part-timers, faces the risk that there will be a reduction below 39 hours per week in the work which is rota-ed for her to do.  That has not yet occurred but it is likely to become a reality if she is indeed a part-time employee.  The amount of overtime has already declined”

5	The Chairman, having considered the matter decided that the issue really was, as the Applicant alleged:
“the written contract did not reflect the original agreement, which agreement the parties had subsequently adhered to.   That is, the original agreement that the Applicant had been given and would work full-time hours.  It was simply a matter of form that she had not been given a document confirming that.  Both parties made submissions on this basis.  The Chairman is satisfied that the Applicant has proved her case.  It was not simply or even really that she has throughout worked 39 hours per week (plus overtime).  It is rather a matter that the Applicant and Mr Thake agreed that she would be given and work 39 hours per week all year round.  The formal document (entitled and referred to as the contract by Mr Thake and the Applicant) did not reflect this because Mr Thake understood that such a document would not be acceptable to the Respondent.  However, he caused the Applicant to believe and intended so to cause her to believe that she would always be provided with a minimum of 39 hours per week and that she would have to do that work.  She so understood him. Whatever may be the case in respect of the rest of the employees whom the Respondents term part-time, the Applicant is not, and never has been a part-time employee.  She always worked on the basis of an agreement, not reflected in writing, that she would work full-time.  She moved from one full-time job to another when she left London Transport and joined the Respondent in 1990..She has no written terms and conditions which reflect that fact.”

6	It is very easy to criticise public authorities.  They have a difficult task and there is an instinctive desire, on the part of the public, that they should set and adhere to the highest standards irrespective of the resources with which they are provided.  But we did find it somewhat sad that this matter ever came to a Tribunal hearing.  We pointed out our concerns that “particulars of employment” is not a contractual document.  Here there was a clear finding by the Chairman that there had been an agreement that she should work full-time.  That is what happened; that is the way the rotas had gone.  

7	Mr Gray took instructions and asked leave to withdraw the appeal.  We think that was the right approach and we were then met by a request from Mr Linden that the Applicant should pay the costs. 

8	Mr Linden’s argument is that the case is based on fundamental findings of fact and if they were to be challenged, on the quasi-perversity argument, there should have been Chairman’s Notes of Evidence, and he says it is no protection to the Appellant that they were given leave to go to a full Tribunal.  The statutory test under the Employment Appeal Tribunal Rules is this, Section 34:

“34  Costs or expenses.
(1) Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there had been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings.”

9	Firstly, we accept that there is a public interest in a local authority seeking to clarify its position in legal proceedings though we question whether this is quite the case for this issue to have been a test case.  It is not the case, as would apply to other areas of litigation, where costs follow the event.  In such cases where leave is given by the Court of Appeal, or for that matter by the trial judge to go the Court of Appeal the fact that leave is given does not insulate the appellant against the consequences of the normal rule that costs follow the event.  

10	In this case there is a particular statutory basis for the award of costs.  We have considered the arguments carefully.  At the end of the day we do not consider that this is a case where it would be right to exercise our discretion, and we are not satisfied that it comes within the ambit of the Rule, but that if it did, we would not consider in all the circumstances, it appropriate for us to order the Appellant to pay the Respondent’s costs.  

11	As a matter of reality, Mr Linden says, and we are sure quite rightly, that the coffers of the Transport and General Workers Union are no more endless than those of a local authority.  That is right, but it remains our view that this is not an appropriate case to order costs.