United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR GILLOT (Representative) Employment Relations Advisory Services 5 Wilderspin Close Girton Cambridge CB3 0LZ
For the Respondent	MR RUNCIMAN (Representative) Crosby Mariner Associates 202 Blind Lane Flackwell Heath High Wycombe Buckinghamshire HP6 9LE


 


MR JUSTICE LINDSAY: We have before us an appeal by Mr R P Jeffries in respect of a decision of the Industrial Tribunal under the Chairmanship of Mrs Tribe given on 3rd November 1995.

The tribunal was concerned only with a jurisdictional preliminary point, and they held, unanimously, that the applicant, Mr Jeffries, had insufficient service to present his complaint of unfair dismissal. He had not served, in their view, the necessary two year period.

It is unfortunately necessary to give the statutory background to the case that was before the Industrial Tribunal. Section 54 of the 1978 Act provides that every employee shall have the right not to be unfairly dismissed by his employer, but subsection (2) provides for cases of exception. One of those cases of exception is covered by section 64 which provides that:

"(1) ..., section 54 does not apply to a dismissal of an employee from any employment if the employee -

(a) was not continuously employed for a period of not less than two years ending with the effective date of termination, ..."

Section 151, which is headed "Computation of period of continuous employment", at subsections (1), (2) and (3) makes reference to the 13th Schedule to the 1978 Act as being the vehicle by which periods of computation are to be computed.

Schedule 13 begins by saying:

"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.

...

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

So there is rebuttable presumption of continuity.

Then one comes to the paragraph in Schedule 13 that most concerns us, and that is 9(1):

"9 (1) If any week the employee is, for the whole or part of the week -

(a) incapable of work in consequence of sickness or injury, or

...

that week shall, notwithstanding that it does not fall under paragraph 3, 4 or 5, count as a period of employment."

(Those, I think, are all the provisions we need at the moment.)

Going back to the decision of the Industrial Tribunal, Mr Jeffries claimed that he was unfairly dismissed. He had commenced service at the respondent's shop premises on 27th April 1992 as a general butchery assistant, and he worked continuously, so found the Industrial Tribunal, until he was dismissed on 25th March 1994. He certainly was employed continuously in that period, but in fact, there were numerous absences through ill-health or sickness of one kind or another.

It is plain from that computation from 27th April 1992 to 25th March 1994 that looking only at that period the necessary two years had not been served.

However, the position was, leaving aside for the moment how it came about that that first employment ceased, that on 23rd or 24th May 1994, therefore after an absence of some 13 weeks, once again Mr Powter, the respondent, employed Mr Jeffries. The question therefore arises whether in respect of a later dismissal, Mr Jeffries can tack on the 13 weeks and claim continuity by reason of paragraph 9(1)(a)?

Turning to the reasons why Mr Jeffries was dismissed from his first employment, there was a sharp conflict of evidence before the Industrial Tribunal. But "on balance", said the Industrial Tribunal, "we prefer the respondent's evidence". The respondent's evidence was that Mr Jeffries had himself wished to be dismissed and had asked to be dismissed in order to claim what the Industrial Tribunal described as "appropriate state benefits", namely, state benefits in respect of sickness or disability.

We have indicated that it was on 25th March 1995 that the first spell of Mr Jeffries' employment ended. On 28th March 1995 his doctor provided him with a certificate that he was unfit for work. The Industrial Tribunal held that Mr Jeffries' absence in 13-week period between the ending of the first spell and the beginning of the second, was not due to sickness or injury, but was by reason of his dismissal which was requested in order to enable him to claim state benefits.

It was the respondent's own case before the Industrial Tribunal that on 25th March 1995 Mr Jeffries was dismissed on the ground of medical incapability.

At this point it is convenient to turn to the law on the subject. I first turn to Harvey at paragraph 115, which is provided to us by way of photocopy. It says there, concerning paragraph 9 of Schedule 13:

"The first point is that para 9 applies, and applies only, where there is period during which there is no contract of employment. It contemplates that, at some time in the past, the contract of employment came to an end, by dismissal, resignation, effluxation of time of otherwise, and that, after an interval when there was no contract at all, the employee became employed under a contract again. Paragraph 9 may be used to fill the interval and to allow the weeks of the interval to count towards the period of employment."

It will be seen from that summary, which, in our view, is a correct statement of the law, that even if a man is dismissed so as to bring his first spell of employment to an end, a case can arise in which upon his later re-employment paragraph 9 fills in the interval and allows the weeks of the interval to count towards the period of employment. That was the question before the Industrial Tribunal and is the question before us. Does paragraph 9 fill the gap?

In relation to that, we were referred to the case of Pearson v Kent County Council [1993] IRLR 165 CA. In that case Mr Pearson obtained a medical certificate from the respondent's own medical officer of health on 16th May 1984, certifying that he, Mr Pearson, was incapable of discharging efficiently the duties of his employment by reason of ill-health. As early as April 1984, Mr Pearson had written indicating that he was resigning on medical grounds from his office as head of superannuation and that he would be leaving on 31st May. Even before he left on 31st May, and, indeed, before he had the medical certificate, he was offered a position as superannuation technical assistant with effect from 11th June. That was a less demanding type of job, and he accepted that job and took up the position from 11th June 1994. Later on he was dismissed by way of redundancy on 31st October 1988, and he relied on paragraph 9(1) in a way that is material to our case.

The important feature of the Pearson case was that by reason of the offer and acceptance of the lesser job, the Court of Appeal held that all along, although Mr Pearson may have been incapable of doing the more demanding job, his medical condition did not prevent him from carrying on his new position as a technical assistant. In paragraph 12 of the case Balcombe LJ with whom Mann LJ and Leggatt LJ agreed, said:

" In the circumstances of this case there was no error of law on the part of the Industrial Tribunal when it said that Mr Pearson's absence from 31 May to 11 June 1984 was not connected to his incapacity through sickness. That incapacity related solely to his ability to work as head of the superannuation department. It did not prevent him from carrying on in his new position as a technical assistant and his absence was as explained in the last sentence of paragraph 14 of the Industrial Tribunal's reasons, which I read again:

'This 10-day absence from work was to enable the applicant to take advantage of the respondents' medical retirement provisions and so that Mr Mercer could allay any anxieties on the part of the relevant council committee, that the situation had been manipulated.'"

So there there was evidence that throughout the short absence, there was nothing to prevent Mr Pearson from carrying on the new position which he had already been offered of being a technical assistant, the less demanding job.

Another feature of the case we need to pay attention to is that there was an argument in that case that no causal link needed to be established between an employee's absence and the incapacity and consequence of sickness or injury. At paragraph 7 of the case Balcombe LJ said:

" In my judgment the submission that paragraph 9(1)(a) requires no causal link between the absence and the incapacity in consequence of sickness or injury is wrong."

We can take it from that that there needs to be some causal link between the absence and the incapacity in consequence of sickness or injury.

Going back to the Industrial Tribunal in this case, the finding, as I have read, was that the dismissal was requested in order to enable Mr Jeffries to claim state benefits. But that of itself hardly seems to indicate that there is no incapability of work in consequence of sickness or injury because the argument as referred to in the decision of the Industrial Tribunal was that Mr Jeffries wished to claim what it called "appropriate state benefits". In other words, Mr Jeffries was seeking to claim state sickness and injury disability benefits which was appropriate to be claimed. It is hard to see how a request that one should be dismissed in order to claim sickness benefits indicates the absence of an incapability of work in consequence of sickness or injury. Moreover, throughout the period of the 13-week gap that we have explained, there were, and there was evidence of this before the Industrial Tribunal, not only a doctor's certificate or certificates that Mr Jeffries was unfit for work, but also records indicating that throughout the whole of the period he was claiming and receiving statutory sickness benefit.

The onus, as already explained, is effectively upon the employer to prove discontinuity. The employer seeks to do that by saying that in late May 1994, Mr Jeffries telephoned the respondent, Mr Powter, and asked Mr Powter if he had any jobs going. That is late May and it has been impossible, as it seems, to put a more precise date on it than that. But it is to be remembered that the re-employment was on either 23rd or 24th May 1994. Just how early that request had been made by Mr Jeffries is hard to be sure. There may have been very little or no gap between that request and the restart on 23rd or 24th May. But, in any event, it is hardly proof of a man not being incapacitated through sickness or injury that he has asked whether there were any jobs going. A man who feels he is on the mend may very sensibly make enquiry as to prospective future employment, even before he is thoroughly mended but in the hope that soon he will be. It is not possible, given that the onus is on the employer to prove discontinuity, to take the evidence that in late May Mr Jeffries made a request whether were any jobs going as an indication that he was, before 23rd or 24th May 1994, once again able to work. That is the only ground that is relied upon, apart from the fact that the initial request, as the respondent described it, was that Mr Jeffries should be allowed to be dismissed or be dismissed because he wanted to claim appropriate state benefits.

There is no doubt that in coming to the decision we are about to come to, we have felt some unease. The regulations as they are drafted have the uncomfortable effect that an employer who, like Mr Powter in this case, appears to have behaved generously towards his employee in considering him and then taking him back on, notwithstanding the earlier sickness record, is penalised, in a sense, on the second dismissal, in a way that a less generous employer would not be. It is hardly conduces to good practices on an employer's part if the employer is treated worse, on taking a man back on, than he would be were he to refuse that man re-employment and instead employ a complete outsider. We do have unease on those grounds.

But, for all that, we hold that there is an error law in the reasoning of the Industrial Tribunal. There was no sufficient ground on which they could hold that there was discontinuity because, throughout the period of 13 weeks, Mr Jeffries was incapable of working in consequence of sickness or injury in the sense that his request to be dismissed was on medical grounds, his dismissal (it was the respondent's own case) was on grounds of medical incapability, and throughout the period he had running doctor's certificates indicating that he was incapable of work, and only at late stage, late May (even if one generously takes the indication that he asked for work as being an indication of immediate ability to carry out work) was there anything to indicate the incapacity was over. That late May request does not operate early enough to bring about the necessary discontinuity for which the respondent argues.

We therefore are obliged to remit the matter to the tribunal on the basis that the jurisdictional point in front of them was satisfied by Mr Jeffries. In other words, he has sufficient service to present his complaint of unfair dismissal. Nothing we say, of course, in any way touches on the fairness or unfairness or surrounding circumstances relative to his later dismissal. We have been concerned only with the point of law in relation to continuity of service, but as to that we find that there was continuity and therefore remit the matter to the same Industrial Tribunal for a further hearing on the basis that such sufficient service had been shown.