Ross v Eddie Stobart Ltd

A mobile road-transport worker cannot be required to remain at the employer’s depot during a period of availability. Under the Road Transport (Working Time) Regulations 2005, that requirement makes the period working time and it counts towards the average weekly limit.

An Employment Tribunal must address an employee’s case that disclosures of regulatory non-compliance were protected disclosures, and must make sufficient findings on a claim under section 100(1)(c) of the Employment Rights Act 1996. The statutory protections for dismissal and detriment under sections 101A and 45A cannot be interpreted to include the Road Transport Regulations, which Parliament did not list.

The claimant was an HGV driver and therefore a mobile worker under the Road Transport (Working Time) Regulations 2005. His employer required him to remain at its depot for three days described as periods of availability after his average hours over 17 weeks had become excessive.

He challenged that requirement with his manager and contacted VOSA. He also relied on complaints concerning vehicle safety. The Liverpool Employment Tribunal dismissed his claims, including claims of automatically unfair dismissal based on protected disclosures, health and safety, and working-time matters.

On appeal, the central issues were whether the depot requirement was lawful under the Road Transport Regulations, whether the Tribunal had addressed the statutory dismissal claims adequately, and whether the working-time protections in the Employment Rights Act 1996 extended to those Regulations.

1. Appeal allowed. The Tribunal’s findings on the principal reason for dismissal could not safely stand. The case was remitted for a complete rehearing before a differently constituted Tribunal.
2. The claimant was correct about the effect of the Road Transport (Working Time) Regulations 2005. A period of availability requires that the mobile worker is not required to remain at a workstation. The depot was a workstation. Requiring the claimant to remain there therefore made the time working time, rather than a period of availability, and it counted towards the 48-hour average.
3. The Tribunal had wrongly treated that issue as a grey area. Its error was material to its assessment that the claimant was difficult to work with and had a poor attitude. The Tribunal also failed to make adequate findings on the claimant’s complaints about vehicle defects and safety.
4. A disclosure to the employer’s manager of facts tending to show non-compliance with legal obligations could fall within section 43C(1)(a), read with section 43L(3), of the Employment Rights Act 1996. The Tribunal should have considered that issue. Disclosure to VOSA did not fall within section 43C(1)(b)(ii), which concerns a person with legal responsibility for the relevant matter rather than a regulator. It might nevertheless be protected under section 43G, depending on findings at the rehearing.
5. The Tribunal had not properly addressed section 100(1)(c). It needed findings on the safety matters raised, the claimant’s reasonable belief, the means by which he raised them, and whether a safety representative or committee existed or could reasonably have been used.
6. Sections 101A and 45A did not cover contraventions of, or rights under, the Road Transport Regulations. Their express references to the Working Time Regulations 1998 and specified sectoral regulations could not be interpreted to add an omitted regime. The Road Transport Directive could not be given horizontal direct effect in litigation between private parties.

• Employment Appeal Tribunal: appeal allowed and the case remitted for a complete rehearing before a differently constituted Employment Tribunal.
• Employment Tribunal, Liverpool: judgment dated 30 November 2009 dismissing all claims.