Grant v Kent County Council

For contractual purposes, required work is not confined to work imposed expressly by the contract or by managerial order. Work may be required where it is necessary for the employee’s duties to be properly performed. The Court of Appeal considered that a further limb based on work expected by the employer could create difficulty in application. Permission to appeal was therefore granted so that the scope of that limb could be considered, subject to the local authority bearing both sides’ reasonable costs.

A former manager of out-of-hours social services claimed a standby duty allowance for hours exceeding his 37-hour standard working week. The entitlement depended on whether he was an employee required to undertake standby and call-out duties under paragraphs 3–11(b), section 3 of the Blue Book.

The Employment Tribunal held that the work was not contractually required, although the claimant had a strong moral obligation to perform it. The Employment Appeal Tribunal allowed his appeal, construed required more broadly, and remitted the claim for application of that construction. The local authority sought renewed permission to appeal, principally concerning the additional limb based on what it expected the claimant to do.

Lord Justice Sedley, with whom Lord Justice Brooke agreed, dealt with a renewed application for permission to appeal. The Court did not determine the remitted claim on its merits.

1. The argument that required meant only contractually required work was rejected. In ordinary language, many things may be required without being the subject of a contractual or legal obligation. The Blue Book was not to be construed by reference to the use of the word in employment legislation.

2. The Court accepted the EAT’s construction insofar as work necessary for the proper performance of the employee’s duties could constitute required work. The decision of Lewis J in Henaghan v Rederiet F orangirene [1936] 2 All ER 1426, which supported the proposition that necessity could amount to being required without an express direction, was noted as supporting that approach.

3. The EAT’s further limb, namely that work could be required if it was expected by the Council, particularly in the absence of anyone else to perform it, was capable of creating difficulty in application. The facts were not sufficiently clear for that issue to be resolved at the permission stage, and it was desirable that the Court should consider it on an appeal.

4. Concern that the broader construction might generate numerous claims was not persuasive. If the Council wished to limit what staff were required to do, it could give appropriate instructions.

Permission to appeal was granted on the stated terms. The Council was given 14 days to decide whether to pursue the appeal. If pursued, it was required to bear both sides’ reasonable costs, whether successful or unsuccessful. The appeal was listed for half a day, with costs of the appeal and any cross-appeal to be borne by the Council.

1. Court of Appeal (Civil Division): granted renewed permission to appeal, subject to the stated costs condition.
2. Employment Appeal Tribunal: allowed the former employee’s appeal against the Employment Tribunal’s construction of required and remitted the claim for application of the broader construction.
3. Employment Tribunal, Ashford: held that the standby work was not contractually required, although the claimant considered himself morally obliged to perform it.