United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 717_93_0702

Appeal No. EAT 717/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7th February 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS M L BOYLE

MR J A SCOULLER

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MRS S M ANDERSON          APPELLANT

LANCASHIRE COUNTY COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR P E ANDERSON

(Husband)


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mrs S M Anderson against the unanimous decision of the Industrial Tribunal held at Manchester on the 26th April 1993.

The Industrial Tribunal dealt with a preliminary point raised by Mrs Anderson's former employer, Lancashire County Council, as to whether it had jurisdiction to determine a complaint by Mrs Anderson of unfair dismissal. The Tribunal decided that Mrs Anderson did not, at the relevant date, have the period of continuous employment required by Section 64(1)(a) of the Employment Protection (Consolidation) Act 1978.

The reasons for the decision were notified to the parties on the 17th June 1993. Mrs Anderson was dissatisfied with the decision on the preliminary point. By a Notice of Appeal dated 23rd July 1993, she appealed against the decision on the ground that she was employed for a continuous period of two years from the 1st December 1990.

The matter was set down for a preliminary hearing because, as was explained to Mrs Anderson in a letter from the Registrar of this Tribunal on the 29th July 1993, it did not appear that the Notice of Appeal, as drafted, raised a point of law. It was pointed out in the letter:

"The only jurisdiction which the Employment Appeal Tribunal has to hear an appeal is `on a question of law arising from any decision of, or arising from any proceedings before, an industrial tribunal'. The Employment Appeal Tribunal has no power to reverse an Industrial Tribunal's findings of fact unless a question of law arises."

At the hearing today Mr Anderson has presented the arguments on his wife's behalf. In order to understand the arguments it is necessary to go back to the Application made to the Industrial Tribunal on the 14th December 1992. She complained in the Application that she had been unfairly dismissed by the Council from her job as Deputy Registrar of Births and Deaths for Preston and South Ribble. Her employment had begun on 27th July 1987 and had ended on 3rd December 1992. The contract document confirms the date of commencement of employment, Mrs Anderson's job description and the place at which she was to exercise the responsibilities of her post. The contractual document stated in paragraph 3:

"Your period of continuous service dates from the date of commencement of your continuous service with this Authority as shown at the head of this statement [that is the 27th July 1987] except where periods of previous service with other local authorities and related employers are allowed to count as continuous employment in the Scheme of Conditions of Service and other agreements referred to in Paragraph 2 above."

Based largely on that contractual document Mrs Anderson pursued her claim that she was unfairly dismissed and that she had served the requisite period of continuous service.

This was, however, disputed by the Council. By its Notice of Appearance dated 1st February 1993, it took the point that Mrs Anderson was not eligible to present a complaint of unfair dismissal as she had not been continuously employed for the requisite period. The Council stated that Mrs Anderson had not worked at all during any week between the 31st July 1992 and the 3rd December 1992 and accordingly she had not been employed for sixteen hours or more during any part of that period. They further contended that Mrs Anderson's contract did not normally involve employment for any particular number of hours weekly and frequently during the term of her contract she did not work at all in a given week.

Those were the issues before the Industrial Tribunal. The Industrial Tribunal heard argument. Mr and Mrs Anderson conducted Mrs Anderson's case. The Council's solicitor appeared for the Local Authority. The Tribunal set out the facts, including the undisputed fact that between July 1987 and December 1992 Mrs Anderson was subject to a contract of employment evidenced by the document to which I have referred. The Tribunal stated in paragraph 9 of its decision that from a document, which was not challenged, it appeared that for the period December 1990 to December 1992 Mrs Anderson only worked 29 weeks out of a total of 104, and in many of the weeks in which she did work she did not work 16 hours or even 8 hours. The Tribunal referred to various authorities on this subject and stated in conclusion at paragraph 10 the following findings:

"10. The Tribunal could not find here that the applicant [Mrs Anderson] fulfilled the requirement of continuous employment for a period of two years or more from the 1 December 1990 to the date her contract of employment terminated, the relevant date as required by Section 64(1)(a) of the Act. She was not normally required to work more than 8 hours let alone 16 hours per week, and although the Tribunal had considerable sympathy with her, she failed to satisfy the statutory requirements and therefore the Tribunal have no jurisdiction to deal with the complaint that the termination of her employment on the 3 December 1992 amounted to a dismissal which was unfair in the context of Section 57 of the Act."

Mr Anderson, on the appeal, has made his point very clearly. The point is that the contract document was misleading in that it led him and his wife to believe that she had a period of continuous employment or service from the date of the commencement of the contract on the 27th July 1987. This point was made by Mrs Anderson in a letter which she wrote to the Tribunal on the 25th June 1993 in which she said, referring to paragraph 10 of the decision,

"the Chairman has not right to question the authority and legality of my Contract which states continuous employment since 1987 and NO HOURS WERE ENTERED ON THE CONTRACT which means legally that a full working week is and can be applied. In this case a full working week was 37 hours which Mr Moncrief of the Respondent [Council] has confirmed, and the Respondent [Council] one way or another will be made to abide by this Contract."

A similar point is made in the Skeleton Argument submitted by Mrs Anderson. In paragraph 2 of the argument reference is made to the contract document and to the date of employment commencing on the 27th July 1987. It is submitted that Mrs Anderson was continuously employed under that contract until her dismissal on the 3rd December 1992. It is submitted:

"The applicant was employed on a continuous contract, of more than 16 hours per week, which had continuous employment written into the Contract to allow her to deputise for 37 hours per week indefinitely, if the Respondent and applicant agreed. The applicant has and will abide by the Contract of Employment, but feels that the Respondent tried to change the terms of the Contract of Employment, when it did not suit the Respondent's purpose, so as to deny the applicant a fair and just full Tribunal."

The Members of this Tribunal fully understand the point made by Mr Anderson and by his wife in the documents and how that argument is based on the terms of the contract. As a matter of law, however, the argument advanced on behalf of Mrs Anderson is a legal confusion.

In her application to the Industrial Tribunal she complained of unfair dismissal. The right not to be unfairly dismissed is not a right created by the contract; it is a right which is created by Act of Parliament. It is Section 54 of the Employment Protection (Consolidation) Act 1978 which provides:

"(1) In every employment to which this section applies every employee shall have the right not to be unfairly dismissed by his employer."

The contract is necessary as a stage in establishing the existence of the employment, but in order to establish the right not to be unfairly dismissed the applicant has to rely on the Act of Parliament. The 1978 Act lays down conditions which have to be satisfied in order to bring an action for unfair dismissal. The relevant conditions are those referred to by the Tribunal in its decision, namely, Section 64(1)(a) of the 1978 Act and Schedule 13.

It is the view of this Tribunal that the Industrial Tribunal correctly referred to the relevant parts of the 1978 Act, correctly construed them and applied them to the facts before them. The fallacy in the point raised on the appeal is that it is the Act, not the contract which governs the right not to be unfairly dismissed. The right not to be unfairly dismissed is governed by the Act. If the requirements of the Act are not satisfied then, as a preliminary point, the Industrial Tribunal was right to decide that it had no jurisdiction to hear the complaint.

For those reasons there is no point of law raised by Mr and Mrs Anderson which is reasonably arguable. There is, therefore, no point in this appeal proceeding to a full hearing. It will be dismissed.