United Kingdom Employment Appeal Tribunal

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Cite as: [1992] UKEAT 317_90_2207

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BAILII case number: [1992] UKEAT 317_90_2207

Appeal No. EAT/317/90

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 July 1992

Judgment delivered on 11 September 1992

Before

THE HONOURABLE MR JUSTICE WOOD MC (P)

Ms B DEAN

MR J C RAMSAY

MISS A WELLS APPELLANT

LONDON SCHOOL OF ECONOMICS AND POLITICAL SCIENCE RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant IN PERSON

For the Respondents Mr C Wynter

(of Counsel)

Messrs D J Freeman & Co

43 Fetter Lane

LONDON EC4A 1NA

MR JUSTICE WOOD (PRESIDENT): This is an appeal by Miss Wells from a decision of an Industrial Tribunal sitting at London (South) under the Chairmanship of Mrs Stella Hollis who on 26th April 1990 dismissed an application for unfair dismissal on the part of Miss Wells because the Tribunal found that she did not have a sufficient qualifying period to bring the proceedings. Section 64 provides that the applicant shall have been "continuously employed for a period of not less than two years ending with the effective date of termination".

Section 151 of the Act provides that

"(1) References in any provision of this Act to a period of continuous employment are ... to a period computed in accordance with the provisions of this section and Schedule 13; ...

(2) In computing an employee's period of continuous employment any question arising as to -

(a) whether the employee's entitlement is of a kind counting towards a period of continuous employment, or

(b) whether periods, consecutive or otherwise) are to be treated as forming a single period of continuous employment, shall be determined in accordance with Schedule 13 (that is to say, week by week) but the length of an employee's period of employment shall be computed in months and years of twelve months in accordance with the following rules."

The remaining parts of S.151 are not important.

The relevant paragraphs of Schedule read -

"1.(1) Except so far as otherwise provided by the following provisions of this Schedule, a week which does not count under paragraphs 3 to 12 breaks the continuity of the period of employment.

(2) ...

(3) A person's employment during any period shall, unless the contrary is shown, be presumed to have been continuous."

2. ...

3. Any week in which the employee is employed for sixteen hours or more shall count in computing a period of employment.

4. Any week during a whole or part of which the employee's relations with the employer are governed by a contract of employment which normally involves employment for sixteen hours or more weekly shall count in computing a period of employment"

5. ...

6.(1) An employee whose relations with his employer are governed, or have been from time to time governed, by a contract of employment which normally involves employment for eight hours or more, but less than sixteen hours, weekly shall nevertheless, if he satisfies the condition referred to in sub-paragraph (2), be treated for the purposes of this Schedule (apart from this paragraph) as if his contract normally involved employment for sixteen hours or more weekly, and had at all times at which there was a contract during the period of employment of five years or more referred to in sub-paragraph (2) normally involved employment for sixteen hours or more weekly.

(2) Sub-paragraph (1) shall apply if the employee, on the date by reference to which the length of any period of employment falls to be ascertained in accordance with the provisions of this Schedule, has been continuously employed within the meaning of sub-paragraph (3) for a period of five years or more.

(3) In computing for the purposes of sub-paragraph (2) an employee's period of employment, the provisions of this Schedule (apart from this paragraph) shall apply but as if, in paragraphs 3 and 4, for the words "sixteen hours" wherever they occur, there were substituted the words "eight hours".

7.(1) If an employee has, at any time during the relevant period of employment, been continuously employed for a period which qualifies him for any right which requires a qualifying period of continuous employment computed in accordance with this Schedule, then he shall be regarded for the purposes of qualifying for that right as continuing to satisfy that requirement until the condition referred to in sub-paragraph (e) occurs.

(2) ...

(3) The condition which defeats the operation of sub-paragraph (1) is that in a week subsequent to the time at which the employee qualified as referred to in that sub-paragraph -

(a) his relations with his employer are governed by a contract of employment which normally involves employment for less than eight hours weekly; and

(b) he is employed in that week for less than sixteen hours."

Since 1980 Miss Wells has been employed by the Respondents as an occasional teacher under a number of contracts. The final contract terminated on 4th December 1990 which is the effective date of termination. One is therefore looking for a period of two years or five years depending on the terms of the contract in order to provide qualification.

It is clear from the documents before us that over that period of time she was engaged on about 15 contracts. These contracts did not necessarily follow immediately the one upon the other and there were substantial gaps in between contracts with a minimum gap of 20 and a maximum of 224 days. No contract was immediately consecutive upon the previous one. It is clear from a schedule that during that period she worked for some 240 days and that save in the earliest stages and for one contract for 4 days in September 1989, she did not work for more than 8 hours in any one week. We have seen a number of written contracts and it is apparent that in several of them not only does the contract not require work in excess of 8 hours a week but that the terms and conditions on the reverse of the contract include the phrase, "I must emphasise that if you accept appointment on these terms you must not work for more than 6 hours in any week. If you do so the School will not be able to recognise such extra hours, nor will payment be made for them."

It is therefore clear that over this period of time there were substantial breaks in the LSE's employment of Miss Wells as an occasional teacher and that in only two of the earliest contracts was she required to work more than 8 or indeed sixteen hours per week.

As appears from the decision of the Tribunal there would have been a large number of issues both of fact and law if a full hearing had taken place and so the Chairman, with the agreement of counsel, dealt with the matter on the basis of facts that were agreed between the parties but were sufficient for the determination of jurisdiction. Those facts, which were agreed, were that the Applicant did not work for more than 8 hours a week in the period from 22nd October 1984 until 18th March 1985 and that the date of termination of employment was 4th December 1989.

It is clear from paragraph 3 of Schedule 13 that if an applicant in fact works for more than 16 hours a week that week shall count and by paragraph 4 that if in a week the employee's relationship in relation with the employer is governed by a contract of employment normally involving employment of 16 hours or more it shall count in computing the period of employment even though those hours were not in fact worked or additional hours were in fact worked.

That it is the contract of employment which is the dominating factor is emphasised in SECRETARY OF STATE FOR EMPLOYMENT v. DEARY [1984] ICR 413. That was a case in which the seven applicants had been employed by the County Council as school dinner ladies for periods varying between 7 and 14 years. Their contracts specified the number of hours to be worked each week but the contracts also provided that the number of hours worked depended on the number of meals being served. The applicants, as part-time workers, had all worked for over 5 years for periods exceeding 8 hours a week until in 1980 one applicant's hours were reduced to under 8 hours a week and in 1981 the other applicants' hours were also reduced to under 8 hours. They were all dismissed on the grounds of redundancy, the first in May 1981 and the others in the second half of 1982. It was therefore necessary to see whether they had been continuously employed for a period of five years under the terms of a contract that normally involved at least 8 hours' employment a week within the meaning of paragraph 4 of Schedule 13.

In answer to a submission that one needed to look at the actual hours worked this Tribunal said this at p.418B -

"The difficulty which, in our judgment, that submission encounters is that it gives no adequate force to the use of the word "normally". The paragraph in question is dealing with a period terminating in the redundancy of the employee concerned which, in the nature of things, is likely to be an unusual period. Its terms are those of a contract of employment which normally involves employment for the requisite number of hours. Those terms, in our judgment, direct the mind to the contract as originally drawn, and to the normal working of that contract throughout its life. So applying them in the present case, one finds, as did the tribunal, that the contract of employment normally involved, in the case of each of these ladies during the life of the contract, a period which exceeded eight hours. In our judgment, that is the correct approach to the paragraph and we therefore agree with the conclusion of the tribunal upon that point."

It will be seen from that case that it is the contract which one needs to examine and in this case there were virtually no contracts which normally required work in excess of eight hours a week. However, taking the agreed facts and looking at the schedule, it is said by Miss Wells, who has argued her case before us admirably, that under paragraph 6 of Schedule 13 she is entitled to look at the whole period and if at anytime she worked in a week for more than eight hours a week then all those weeks can be added together and she would therefore have a continuous period of five years or more for the purposes of her case.

On the facts as we have already indicated she could not upon her own argument satisfy the test but we are not satisfied that that is the correct approach. It seems to us that in applying paragraph 6 it is necessary to see whether in any week there is in existence a contract of employment which normally involves employment for eight hours or more but less than 16 hours. That is not so in this case. Secondly, if a succession of contracts nevertheless fell within one contractual concept it must have been continuous over a period of five years or more. Under paragraph 6(3) one needs to read paragraphs 3 and 4 of the Schedule and if there is a week in which those paragraphs are not satisfied then there is a break in the continuity, this is quite clear from paragraph 1(1). We are satisfied here that on the facts paragraphs 3 and 4 were not satisfied. If confirmation were needed for this approach it is to be found in paragraphs 7(1) and 7(3) where it is clear that if in any week a contract of employment normally involves employment for less than eight hours weekly and the applicant in fact is employed for less than sixteen hours then even though a qualification had been acquired for the purposes of paragraph 7(1) it would be lost.

It seems to us therefore that it is fatal to the issue of continuity that there is a week which is not governed by a contract of employment which normally involves employment for more than eight hours.

For these reasons therefore we are satisfied that the decision of this Industrial Tribunal is correct and this appeal must be dismissed.