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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Beattie v Age Concern [2007] UKEAT 0580_06_0802 (8 February 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0580_06_0802.html Cite as: [2007] UKEAT 580_6_802, [2007] UKEAT 0580_06_0802 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE LANGSTAFF
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
APPEARANCES
For the Appellant | MS LISA VAUGHAN (Of Counsel) Instructed by: Messrs Mincoffs 4-6 Osborne Road Jesmond Newcastle NE2 2AA |
For the Respondent | MS NAOMI CUNNINGHAM (Of Counsel) Instructed by: Messrs Short Richardson & Forth Solicitors 4 Mosley Street Newcastle upon Tyne NE1 1DE |
CONTRACT OF EMPLOYMENT
Sick Pay and Holiday Pay
ET were asked to determine what "pay" meant in the context of the Employers' Sick Pay Scheme. It did so by reference to what it considered were normal hours of work as provided by the contract. Contract provided for minimum of 15 hours paid weekly work "but could be more": C never worked less than 30 for 10 years. Held: ET not entitled to say "pay" meant "15 hours pay per week".
THE HONOURABLE MR JUSTICE LANGSTAFF
(1) Is the legal relationship between the parties governed by the terms and conditions set out in the bundle at 234 issued 1 May 1997 and acknowledged for June 1998 (the Terms and Conditions)?
(2) What is the meaning of Section 4 of the Terms and Conditions?
(3) Have the Terms and Conditions been varied?
(4) If yes how?
(5) What is the effect of reimbursing the Claimant for the wages during her period of suspension on the basis of an average working week of thirty-three hours?
(6) Do provisions in the Working Time Regulations for the calculation of holiday pay have any applicability in the present case?
(7) What is the effect of all previous periods of sickness absence being paid on the basis of a 15 hour week?
"15 The issue in this case is whether the respondent was obliged to calculate a week's pay for sick pay purposes to take into account the claimant's average weekly pay prior to her suspension in accordance with section 221(3), (that is a reference to that section of the Employment Rights Act 1996 which deals with the calculation of a week's pay for the purposes of various statutory entitlements under that Act) or whether the respondent was obliged only to base its calculation on the 15 hour minimum as referred to in the claimant's contract of employment."
It will immediately be obvious that that the question the Chairman posed himself was not an issue as determined by the parties and that neither addressed in terms what it is accepted by the Respondent in argument was the reality here of the claim, which is the meaning that should be given to the words "full pay and half pay" within the context of the Sickness Payment Scheme to which I have already referred.
"(1) Interpretation is the ascertainment of the meaning which document could convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
(2) The background was famously referred to by Lord Wilberforce as the 'matrix of fact', but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man."
"18 …. in particular pages 7 and 9. These provide that there was a guaranteed minimum of 15 hours. The normal working week is 15 hours but the normal working hours are "as agreed". "As agreed" means between the claimant and the Home Services Manager. The respondent conceded that this would include Elaine Cutts, (the Care at Home Organiser). Elaine Cutts at page 77 clearly believed the claimant was contractually bound to work alternative weekends. This is not mentioned in the claimant's contract. Susan Pearson at page 85 believed the claimant could not refuse work allocated to her. This is not mentioned in the claimant's contract. Susan Ross at page 36 believed the claimant was obliged to undertake the additional work on Christmas day 2004. This is not mentioned in the claimant's contract as the claimant has already worked 15 hours that week.
19 These factors all point towards an acceptance by the respondent that the claimant was obliged to work more than 15 hours each week. However, the claimant clearly did not accept that obligation as she chose to refuse to work the extra hours on Christmas day; she chose not to work every weekend and she did not accept some work which had been allocated to her.
20 The inference from this was that there was no binding contractual obligation on the respondent to offer the claimant more than 15 hours work and no binding contractual obligation on the claimant to accept more than 15 hours work. Regardless of the circumstances in which the claimant found herself working less hours after her suspension it was for the claimant and the respondent to agree the claimant's hours above the guaranteed minimum of 15 as and when required. That is what the contract says."
And at 22:
"22 The contractual normal working week was, therefore, 15 hours, even if the hours normally worked by the claimant had over time become more than 30. There was no contractual variation whether express or implied by conduct."
It was on the basis of that view of the contract that the Chairman determined the issue that he had posed to himself as he did.
The Contract
"Your normal working week is 15 hours, but could be significantly more.
Your normal working hours are as agreed between you and the Home Services Manager."
This provision has on the face of it to be read hand in hand with the way in which the same matters are expressed in the Statement of Terms and Conditions. It, too, seems to me to show the same division between the Hours of Work in terms of number and the Hours of Work in terms of the times at which those hours will be worked. It must be emphasised as to the first that the provision is not for a normal working week of 15 hours. Consistent with the expression "minimum" in the statement it goes on to say it could be significantly more. It gives no help as to how that additional period of time to constitute a normal working week is to be calculated. As a matter of grammar what could be significantly more is the number of hours which comes within the description of normal working week. It does leave it entirely open as to what the normal working week will be.
"…I think that the Court of Appeal pushed the rule about the construction of documents too far. It applies in cases in which the parties intend all the terms of their contract (apart from any implied by law) to be contained in a document or documents. On the other hand, it does not apply when the intention of the parties objectively ascertained, has to be gathered partly from documents but also from oral exchanges and conduct. In the latter case, the terms of the contract are a question of fact. And of course the question of whether the parties intended a document or documents to be the exclusive record of the terms of their agreement is also a question of fact."
He then illustrated that by referring to the old case of Moore v Garwood in which in particular Pollock C.B. had directed a jury that the nature of a contract into which the parties had entered was rather a question of fact than of law, because it did not consist of one distinct contract between the parties but of a series of acts and things done from which the jury were to determine what was the real intention and meaning of the parties when they entered into the mutual relationship in which they stood. On appeal it was said that that could not have been put in better terms. Applying that approach to the case before him Lord Hoffmann concluded (1234C-D) that:
"…. it was open to the industrial tribunal to find, as a fact, that the parties did not intend the letters to be the sole record of their agreement but intended that it should be contained partly in the letters, partly in oral exchanges at the interviews or elsewhere and partly left to evolve by conduct as time went on. This would not be untypical of agreements by which people are engaged to do work, whether as employees or otherwise."
He held the Tribunal were entitled to take that approach. If that approach can be taken where a contract is silent and does not in its terms envisage oral exchanges which are later to take place as having effect on their relationship then all the more is it appropriate where a contract expressly envisages that there will be some such process. It is open to a Tribunal to take into account what has happened since the contract has been entered into as amplifying the relationship of the parties, or, as it has been put in other cases, enabling a court to derive what the terms of the contract are to be taken as being from the way in which the parties behaved towards each other.
Conclusions