United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1235_95_1607

Appeal No. EAT/1235/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16 July 1996

HIS HONOUR JUDGE PETER CLARK

MRS M E SUNDERLAND JP

MR N D WILLIS

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MR A M GUNNINGHAM          APPELLANT

NOP RESEARCH GROUP LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR N TOMS

(Lecturer in Law)


 


JUDGE PETER CLARK: The employee, Mr Gunningham, commenced employment with the Respondent in October 1991 and resigned on 5 May 1994, claiming that he had been constructively dismissed.

He presented a complaint of unfair dismissal on 12 July 1994. On 28 March 1995 a Tribunal sitting at London (North) under the chairmanship of Mr S. Duncan found, on a preliminary issue, that he was employed under a single contract of employment and had completed the two year qualifying period of continuous employment necessary to found his claim.

On 3 August 1995 the London (North) Industrial Tribunal chaired by Mrs J. Hill considered the question of whether or not he had been dismissed. It found that there was no dismissal. Against that decision, Extended Reasons for which are dated 22 September 1995, he now appeals.

The critical issue before the second Tribunal was whether or not the Respondent had unilaterally reduced his rate of pay in breach of contract, The Tribunal accepted the Respondent's case that whilst he was working on a specific project, the MCS project, his rate of pay was higher than normal. When that project came to an end, so did the higher rate of pay. In reaching that conclusion the Industrial Tribunal preferred the evidence given by the Respondent to that given by the Appellant.

This is a preliminary hearing held to determine whether or not this appeal raises an arguable point of law which ought to go to a full hearing before the Employment Appeal Tribunal.

Mr Toms, on behalf of the Appellant, takes two points in support of the appeal.

First, he says that there was no evidence to support the Industrial Tribunal's conclusion. He points to the wage slips produced to the Industrial Tribunal which showed that whilst working on the MCS project the Appellant received the higher rate of pay when working on other jobs. This was accepted by the Respondent, as appears from their Notice of Appearance, which reads in part:

" ... On occasion, he did work on other assignments and continued to receive the hourly rate attributable to his MCS2 coding activities, which, since January 1994, had been £7.00."

However, the Respondent's case advanced by their witness, Mr Gibbins, was this. There had been interviews held to see who would work on the MCS project. "... prospective interviewees [he said] would have been told of the higher rate of pay for the project and that this was limited to the duration of the project". Once the project ceased then those assigned to it would go back to work as telephone interviewers at the best possible rate available.

It seems to us that the question of whether or not he received the higher rate of pay whilst that project was in train is not determinative of the issue if the Industrial Tribunal accepted that it was agreed between the parties that the higher rate of pay would apply for the duration of the project, then when the project ended so did the higher rate of pay; that is what they found. In our judgment there was evidence to support that finding and we reject the first submission.

The second ground of appeal advanced by Mr Toms is that the first Industrial Tribunal having found that there was a single contract of employment, the second Industrial Tribunal re-opened that issue and found that there was a series of temporary contracts.

Mr Toms accepts that such a finding is not expressed in the decision; it is to be inferred. Again, we cannot agree. The Industrial Tribunal found that there was a single contract of employment, one term of which was that for the duration of the MCS project the Appellant would receive a higher rate of pay; when it finished, he would revert to the basic rate of pay. We can find no inconsistency between that finding of the second Tribunal and the finding of the first Tribunal which was directed to the issue of whether or not the Appellant had completed two years' continuous service.

Mr Tom accepts that this is an appeal based on perversity. That is a high mountain to climb. In our judgment this case does not approach the summit. There is no arguable point of law to go to a full hearing. The appeal must be dismissed.