United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 827_93_0902

Appeal No. EAT/827/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9 February 1994

Before

THE HONOURABLE MR JUSTICE WATERHOUSE

MR J DALY

MRS M E SUNDERLAND JP

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MR R J ORME          APPELLANT

AVON EDUCATION AUTHORITY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant IN PERSON


 


MR JUSTICE WATERHOUSE: This is an appeal from a decision of an Industrial Tribunal sitting at Bristol on 12 August 1993. The Tribunal met to consider a preliminary issue as to whether or not they had jurisdiction to hear the application of the Appellant alleging unfair dismissal. Their unanimous conclusion was that they had no jurisdiction because the Appellant was unable to establish two years continuous employment prior to January 1993, which was the material period within the terms of section 4 of the Employment Protection (Consolidation) Act 1978.

The Originating Application itself was dated 25 April 1993. In that document at paragraph 10, the Appellant, who was a supply teacher, made a complaint about pay due on 29 January 1993 not having been paid followed by the words:

"I claim unfair dismissal as a constructive dismissal"

He went on to refer to getting less work than women because he insisted on "a full day's work not just one or two hours per day" and said

"Because most teachers doing this job are women with broken service they usually have an existing pay point higher than that applied to myself".

The Originating Application referred to an attachment, which was a discursive document, alleging "inter alia" unfair dismissal, failure to provide a pay slip, sex discrimination and age discrimination with long citations from various declarations and covenants made between nations.

It will be obvious from what we have said that the Originating Application did not identify what the claim of the Appellant was in relation to dismissal, save for the vague reference to constructive dismissal. Nevertheless, the Tribunal below rightly directed its attention on the preliminary issue to the short question whether or not the Appellant could establish continuous employment for two years prior to his alleged dismissal.

Having considered the evidence the Tribunal reached the firm conclusion that he was unable to do so. The material matters were set out in paragraph 3 as follows:

"As a supply teacher the procedure was that through contacts, the applicant would get in touch with a school, or sometimes the school would get in touch with him, and invite him to go and teach for a period. The period might be a day or a week or what he called, "open ended", that is to say as long as he was required. He listed some 6 or 7 schools where he had worked, but was not in a position to produce today a comprehensive list of schools and periods when he worked. What he did tell us in evidence was that there were substantial periods where [sic when] he did not work as a teacher, and furthermore than [sic "that"] in a period in September 1992 he was not in a position, for personal reasons, to accept any offers that might have been made."

It is clear that, on the basis of those findings and indeed upon the evidence of the Appellant himself, the Tribunal could not, as a matter of law, find that the Appellant had been in continuous employment for the relevant period. Nevertheless, the Appellant has sought to appeal against that decision on the basis that the conclusions reached by the Tribunal were unreasonable "in view of the similar employment conditions prevailing in the rest of the European Economic Community". In his notice of appeal dated 28 September 1993, he said:

"I contended that the immediate availability for work at very short notice was part of the continuing contract of employment primarily with Avon County Council and therefore with St Mark's School at Bath, constituting what is currently known as "zero hours contract".

My argument that this should be so in establishing continuity of employment was ignored and it was also stated by me that I had not been able to work for a particular short period in September 1992, owing to my wife's incapacity (the principal reason that I have been unable to take "full-time and permanent single-site employment")."

Insofar as those paragraphs purport to put forward some point of law for consideration by the Appeal Tribunal, we are satisfied that the point of law is quite unarguable. The evidence before the Industrial Tribunal below clearly pointed to the fact that there was no continuous contract of employment between the Appellant and the Respondent Education Authority or any specific school.

Having put forward those unacceptable submissions in the grounds of appeal the Appellant has ranged far and wide in criticism of English Employment Law. He suggests that it contravenes fundamental aspects of the British Constitution and is in conflict with provisions of the Treaty of Rome, the Maastricht Treaty, the conventions referred to in the Originating Application and old custom and law. There is also an appendix to the grounds dealing with the meaning of unemployment in substantial detail because it is an aspect of the history of this case that the Appellant agrees that he did draw unemployment pay during various periods in the relevant two years when he was not acting as a supply teacher.

We have examined this additional document but in our judgment there is no arguable point of law in it. The Appellant has been unable to point to any specific directive, for example, of the European Commission covering the issues raised by section 64 of the Act of 1978 as amended and there can be no realistic submission that the amended provisions of that section contravene any relevant directive or other legislation of the European Community.

In the absence of such an assertion or a credible ground for arguing the point we are bound to dismiss the appeal and that we do.