From that it is submitted by Mr Segal that the date for the commencement of the default is the date when the work pattern was imposed. On behalf of the Respondent it is contended that that paragraph does not solve the problem in this case because there is no indication as to whether a complaint was made at the outset.
In Susie Radin Ltd v GMB & Ors [2004] IRLR 400 , a claim for a protective award under sections 188 and 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 , the Court of Appeal ruled that the regime there was penal and not compensatory. This might be relevant to the proceedings in the present case. Peter Gibson LJ cautioned against the read-across from one piece of domestic legislation to another, particularly when considering European obligations.
In Skiggs v South West Trains Ltd [2005] IRLR 459, a claim was considered in relation to a trade union representative who had been refused the opportunity to attend a meeting. He was told that he would not be permitted to take part in any meetings while investigations were ongoing into disciplinary action against him. The EAT examined analogous provisions and concluded that the Employment Tribunal had erred in respect of an award in his case and said this in the judgment given by Mr Commissioner Howell QC.
Finally in Virgo Fidelis Senior School v Boyle [2002] IRLR 268 the EAT, Ansell HHJ and Members, considered a complaint of whistle blowing. The EAT considered that the scope of the provision for compensation in that regime was wider than simply compensation for pecuniary loss.
Discussion and conclusions
With those authorities in mind we turn to consider the arguments. The first relates to the time when the default occurs. Mr Bourne contends that the dictionary definition applies in this case because a refusal means the act of refusing, a denial or a rejection of something demanded or offered. Until the Claimant made his grievance and exercised his right, there was no refusal as required by regulations 30(1) and 30(4).
Mr Segal contends that where there is a mandatory regime by statute it remains in place at all times and when the Claimant was required to work subject to that regime he had been denied the entitlement as given to him under the Working Time Regulations to, as it is put simply, a period of daily rest.
We see force in both of those points but on balance prefer the argument of Mr Bourne. The language used in regulations 30(1) and 30(4) does require two positive steps to be taken. One is exercise of the right and the other is refusal of permission to do so. Mr Segal acknowledges that literally that is the correct interpretation but argues that it is not consonant with the purpose of the directive, which is for the UK to see to it, under EU health and safety obligations, that workers have adequate rest time.
He contends that, purposively construed, regulation 30 entitles the Claimant to count the refusal of permission from the date when he submitted to the regime, that is on the date he started work. However, these regulations do proceed from the language which we have cited and there is nothing that gives us any guidance in the Directive. It was open to Parliament to have expressed the refusal to permit in neutral terms such as "a failure" or "the non-availability of the right". We consider this requires answers to two questions. Did the Claimant exercise the right? Did the Respondent refuse him permission to do so? And in those circumstances it is correct to say that the obligation is triggered when there has been an actual refusal by an employer. The definition of refusal fits perfectly with that approach.
There are other indicators pointing in that direction. In other parts of the employment protection legislation there is scope to deal with what might be described as continuing acts. that is, subjecting the worker to a regime which continues over a period of time; failure to promote; a constant discrimination against women by way of a glass ceiling; and so on. Where there is a series of acts, limitation does not begin to run against a Claimant until the last of the relevant acts: see for example wages protection under Part 1 of the Employment Rights Act 1996 . Neither of those additional routes is available to a person complaining under the Regulations.
In this case time ran from the refusal to permit the Claimant to exercise his right to have a rest period. That was unarguably done on 8 April 2006 when his grievance was effectively rejected, and so the default as found by the Tribunal, taking the form of a refusal to permit the worker to exercise his right to time off, took place from that time onwards. No jurisdiction issue as to time for presenting the claim was raised at the Employment Tribunal.
If we are wrong, and the Tribunal was wrong in taking that period, it has to be said that was the time frame put before the Employment Tribunal. It is only because we have allowed this new point to be taken that it arises. We hold that the Tribunal would have reached the same conclusion, even if it had gone back for four years. That is because of its approach to the second issue which is the default of the Respondent. Both Counsel agree that the starting point is compensation for something the Claimant has suffered. With actual loss under regulation 30(4)(b) out of the picture in this case, nevertheless both Counsel accept that the issue is one of compensation. Compensation for what?
Compensation is a form of reparation, making good to the Claimant. It is different from a sanction placed upon the employer to punish it or to coerce it. In respect of a failure to consult under TULRCA, the sanction is undoubtedly penal, see Susie Radin . There is there no reference at all to compensating the Claimant for any loss he or she has suffered. On the other hand, there are examples where loss is to be considered together with the default or the seriousness of the default of the Respondent, adopting as we do the analogues cited in Skiggs .
In this case, therefore, the issues for the Tribunal to consider when it looked at the default of the Respondent were these. First, the period of time during which there had been a default. Secondly, the degree of default ie how outrageous or offensive its behaviour was in failing to meet the Claimant's grievance on and after 7 April. Thirdly, the amount of the default in terms of the number of hours required to work and to be given off as rest periods.
As to time, we have held that the Tribunal was correct to take the eight month period. This was the period over which there was a default. During that time the Respondent could have been considered to have been at fault for it had been alerted to the Claimant's claim through his trade union and failed to adjust the pattern in the way that they had sought. The Tribunal sought an explanation from the Respondent, to use the terms of Peter Gibson LJ in Susie Radin: "mitigation of the degree to which it was at fault or the degree to which it was in default of the regulations." Here it considered at least five topics. One is that the Respondent took legal advice. In light of the authorities which we have been shown from the European Court, that advice was incorrect. Nevertheless the Tribunal held these regulations were complex. They are, as the Employment Tribunal showed in its previous judgment. That was at least a matter which it could consider as part of the mitigation of the Respondent.
The Tribunal also held that there was no lack of good faith or of goodwill on the part of the Respondent. Those too are matters to be considered. It also considered whether the Respondent was "a culpable employer, as it were". We reject Mr Segal's criticism as wrong in syntax and substance. The use of "as it were" shows the Employment Tribunal did not test the default by reference to culpability in its literal sense, or only to culpability. It was one factor. If the Respondent had flagrantly imposed these excessive hours on the Claimant in disregard of plain legal advice or substantive claims by the Claimant that would be different, but it did not. The union did not raise compensatory rest until the Employment Tribunal hearing.
What is missing from these two paragraphs in the Tribunal's judgment, argues Mr Segal, is a reflection of the circumstances which led it to hold in the Claimant's favour in the first place. In our judgment, that is a jejune submission. Of course the Tribunal was aware of the scale of the default because it had found in the Claimant's favour. Then it would be relevant to know whether the Claimant had been required to work only a slight period in excess or whether his entitlement to a period of rest had only briefly been violated. Those are factors to consider under regulation 30(4)(a). But the Tribunal was well aware of those for it had upheld the Claimant's claim.
The Tribunal was at pains to point out that it had a discretion. Counsel agree that regulation 30(4) regulates the exercise of discretion both when an award is to be made and when the Tribunal decides it is not to make an award. In other words although at first sight regulation 30(3)(b) does not have any controlling or influential features as appear in regulation 30(4) we agree it would be absurd if the Tribunal did not consider the matters in regulation 30(4). So, we hold that even when making no award the provisions of regulation 30(4) will apply to that decision too.
The regulations envisage that there can be a breach of the worker's right with no remedy beyond a declaration. The declaration is mandatory and it is contrasted with the discretion to award compensation or not. Within the award of compensation there are further discretions according to the factors set out in regulation 30(4). There is no further guidance in respect of what the default is and how it is to be measured. This Tribunal has considered the matters which were put before it and come to conclusions to which we hold it was entitled.
Result
At the outset, it was indicated by both Counsel that if we were to uphold the Claimant's appeal we should substitute a judgment and decide the value of the compensation to be awarded to him. With that submission in mind, although not necessary for our decision, we have considered what amount we would make if the Tribunal were wrong. It is surprising for a Tribunal to make no award once it has upheld the Claimant's right, and there are passages in the employment legislation where once a finding has been made a Tribunal is obliged to make or reduce an award of compensation. If a finding has been made that the Claimant contributed to his dismissal then the Tribunal must make a reduction according to its discretion: see for example section 123(6). Here an Employment Tribunal is not obliged to make an award at all.
Left to ourselves, if we had held the Tribunal was wrong on default or in the exercise of its discretion, and the discretion fell to us to exercise, we would have said some compensation was due, but we would have sent it back to the Employment Tribunal to assess, since we simply do not have the material. All we can say is that this certainly demonstrates that when a discretion is in play a different Employment Tribunal or Appeal Tribunal may have taken a different view. The question is whether the Employment Tribunal considered the exercise of its discretion in a way which was wrong in principle or paid attention to factors to which it ought not to have paid attention or did not consider a relevant factor. The Employment Tribunal here is to be acquitted of those charges.
We would very much like to thank both Counsel for their assistance. The appeal is dismissed. Permission to appeal refused [reasons not transcribed].