United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 11_95_1501

Appeal No. EAT/11/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 15 January 1996

HIS HONOUR JUDGE C SMITH QC

MR W MORRIS

MISS S M WILSON

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MISS K BRAILSFORD          APPELLANT

MANSFIELD BREWERY PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR T CROXFORD

(Of Counsel)

Langleys

34 Silver Street

Lincoln

LN2 1ES

For the Respondents MR M BREWER

(Solicitor)

Messrs Pinsent Curtis

41 Park Square

Leeds

LS1 2NS


 


JUDGE SMITH QC: This is an appeal by the Appellant Miss Brailsford against the decision of an Industrial Tribunal sitting at Nottingham on 7 September 1994, whereby the Industrial Tribunal held on a preliminary issue that the Appellant did not have the requisite continuity of employment. The Appellant was dismissed summarily on 28 March 1994 by the Respondent Mansfield Brewery Plc for alleged false accounting, i.e. alleged misconduct. She brought proceedings for unfair dismissal and the Industrial Tribunal tried the issue of continuity as a preliminary issue.

To paint the background to the matter shortly, the Appellant was initially employed as a part-time member of bar staff in various public houses owned by the Respondent, from about the 23 October 1989. It was agreed before the Tribunal that her first employment began more than 2 years prior to the date of her dismissal. As a matter of history, from about July or August 1992 she was employed as a Assistant Manager at the Ladybrook Hotel and finally, from about July 1993 as manager of the Witch & Wardrobe Public House in Lincoln, at a salary of £15,337 per annum. It was from that employment that she was summarily dismissed. The Industrial Tribunal held that the Appellant's continuity of employment was broken for a period of one week, between 23 May 1992 and 1 June 1992. The Industrial Tribunal held that on Saturday 23 May 1992, the Appellant had voluntarily resigned from her position at the Wellington Public House, because it was then and there changing from being a Public House managed by the Respondent, to a tenanted Public House, and she did not wish to work for the incoming tenant and wished to keep her employment with a managed Public House with the Respondents.

The Industrial Tribunal in effect found that, following her resignation, she went to see the manager of the Ladybrook Hotel where she was then offered work in a similar capacity to that which she had held before, which she commenced during the week ending Saturday 6 June 1992; and on the finding of the Industrial Tribunal, in fact on 1 June 1992. It is clear from the Notes of Evidence, as we interpret them, that the Appellant saw the Manager, Mr Steve Bailey of the Ladybrook Hotel on Friday 29 May 1992 and that it was then that the offer was made which she accepted for her to start the next week. The Industrial Tribunal held that she commenced her employment at the Ladybrook on Monday 1 June 1992. The Industrial Tribunal directed themselves as to the law in paragraphs 5 and 6 of its decision. They rightly held that the Appellant must prove on the balance of probabilities that she had two years continuous employment from 29 March 1992. They also rightly held that the Respondents must show weeks which were not to be included. They rightly held that a week means of course a week ending with a Saturday. They went on to hold that the Appellant was not employed under a contract of employment from Saturday 24 May 1992 to Sunday 31 May 1992, which they held was a week where there was no contract of employment between the parties. They then went on to consider whether that week should nevertheless count under paragraph 9 of Schedule 13 of the 1978 Act and correctly set out the relevant sub-paragraphs namely sub-paragraph (b) and sub-paragraph (c); sub-paragraph (b) relating to temporary cessation of work, which I need not set out any further, and sub-paragraph (c) absence from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for all or any purposes.

The Industrial Tribunal held as a fact there was no evidence to support the application of sub-paragraph (b) and no argument was addressed to them on the basis of sub-paragraph (b). With regard to sub-paragraph (c), the Industrial Tribunal held that there was no evidence supporting absence from work pursuant to any custom or arrangement. Accordingly the Industrial Tribunal held that continuity was broken by the absence from work between the 23 May and 1 June 1992. Mr Croxford, Counsel for the Appellant before us today, has in effect taken one point before us which he has argued with brevity and clarity. It arises in this way, during the week after she resigned, it is clear from the Chairman's Notes of Evidence that the Appellant spoke with Mr Steve Bailey, the Manager at the Ladybrook Hotel, managed by the Respondents, and in fact was offered and accepted employment at the Ladybrook Hotel to start on the following Monday 1 June 1992. The submission is made to us that, on its proper construction, the effect of that agreement could have been said to amount to an arrangement made between the Appellant and the Respondent that she was to be regarded as continuing in the employment of the Respondent for that crucial week of 23 May to 1 June. Mr Croxford points to the fact that the agreement for fresh employment at Ladybrook Hotel was made during the week in question, and he submits in effect that a term should be implied into that agreement by necessarily implication that she was to be regarded as continuing in employment. Accordingly he submits that the Industrial Tribunal had misdirected themselves in finding that there was no such arrangement within sub-paragraph 9(1)(c) or I suppose he would say that their finding was perverse in the light of that evidence.

Unhappily we are of the view that this submission, well made though it was, illustrates where justice and the law part company, even in this field of industrial relations. We can see a great deal of justice and equity in so construing the arrangements made on 29 May between Mr Bailey and the Appellant, were it possible so to do. We consider it to be unfortunate on what we have been told about the matter, necessarily an incomplete picture, that the Appellant should have lost continuity of employment in this way, as we regret to say we must hold that she has. We consider that the Respondents should have had in place a system for consulting with their employees once circumstances became known which would or might lead to those employees being faced with the decision whether to accept a transfer under TUPE to a tenanted pub against their wishes, or face losing continuity of employment if they resigned. It seems to us to be unfortunate that such a system of consultation apparently was not operated in this case. However that may be, we regret that despite the advocacy of Mr Croxford we cannot construe the agreement between Mr Bailey and the Appellant as having the legal result he contended for. The simple truth is that neither party addressed their mind to the point at all. By the time the agreement was reached, the Appellant had already resigned. The Industrial Tribunal found as a fact that there was no evidence of absence from work by any custom or arrangement. Whilst we accept that it may well be possible as a matter of law for such an arrangement to be made and to have such an effect after the contract of employment has already come to an end, rather than concurrently with its termination, we consider that we simply cannot construe the agreement made between Mr Bailey and the Appellant as having such an effect in this case. In our judgment the evidence simply will not bear that construction. In our judgment, both parties were in reality concerned and only concerned to deal with the terms under which the Appellant would start work at the Ladybrook. By convenience between them, it was settled that she should start the following week so that she could take a holiday, and as it so happens, be there when the Manager, Mr Bailey, was going to be away himself the next week.

In our judgment the parties were not concerned in any way to reach agreement as to whether if the Appellant agreed to defer her starting date at Ladybrook, she should be allowed to count the week of absence for continuity purposes. In our judgment that matter would have had to have been expressly dealt with and it simply was not. Accordingly, although we find we have some sympathy for the Appellant, certainly on this preliminary point (we know nothing of course about the substantive merits of the matter) we can find no fault in the Industrial Tribunal's decision on the preliminary issue and accordingly the appeal must be dismissed.