United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1376_95_0202

Appeal No. EAT/1376/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 2 February 1996

Before

HIS HONOUR JUDGE SMITH QC

MISS J W COLLERSON

MRS P TURNER OBE

---

(1) NORTH YORKSHIRE COUNTY COUNCIL

(2) RAINCLIFFE SCHOOL          APPELLANTS

MRS G E LAWS          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellants MR A HUNTER

(Of Counsel)

County Secretary

County Hall

Northallerton

North Yorkshire

DL7 8AE

For the Respondent MR T BRENNAN

(Of Counsel)

Reynolds Porter Chamberlain

Chichester House

272/282 High Holborn

London

WC1V 7HA


 


JUDGE SMITH QC: This is an appeal by the Respondents, North Yorkshire County Council and Raincliffe School against a decision of an Industrial Tribunal sitting at Hull on 19 October 1995, when the Industrial Tribunal decided on a preliminary issue that the Appellant, Mrs G E Laws, had been continuously employed for a period of two years, immediately before her employment was terminated, and thus that the Industrial Tribunal had jurisdiction to entertain her complaint of unfair dismissal. The sole point on this appeal, which we have found difficult, is whether a period between 31 July 1993 and 1 September 1993 when it is common ground that the Respondent had no contract of employment, was a period during which the Respondent was absent from work on account of a temporary cessation of work, within sub paragraph 9(1)(b) of Schedule 13 of the Employment Protection Act 1978.

It was common ground that if that period did not count as a period of employment, so that it broke the continuity of employment, then there was no jurisdiction to hear the Respondent's complaint. If, on the other hand, the period did count, then there was jurisdiction to hear the complaint.

Before addressing the arguments and considering the law, it is essential for us to look at the relevant facts as found by the Industrial Tribunal. The Industrial Tribunal found that the Respondent was a teacher. She had had full-time fixed term contracts up to 31 December 1992. If the details become necessary they can be seen in the Industrial Tribunal decision, to which reference can be made. After a very short and irrelevant gap, she took a maternity leave cover contract at Lady Lumley's School between 6 January 1993 and 23 July 1993; a Mrs Phippen was away on maternity leave. Mrs Phippen had a contract up to at least 1 September 1993 and no doubt beyond.

Reverting to the Respondent's contractual position, there was then a gap between 23 July 1993 until the Respondent took up a position at Raincliffe Secondary School, (the second Appellants) between 30 September 1993 and 31 August 1994. She then had a further fixed term contract from 1 September 1994 to 30 April 1995. It is that last contract which was not renewed which has given rise to her substantive claim for unfair dismissal. In fact, Mrs Phippen returned on 23 July 1993 after the expiry of her maternity leave but, importantly, in our judgment, on the findings of the Industrial Tribunal at paragraph 10, Mrs Phippen was not actually required to work between the 23 July and 1 September 1993, since by that date the pupils had left for the summer break. Although of course Mrs Phippen remained under a contract of employment as we have already made clear, and was paid throughout the relevant period with which we are concerned, that is to say for the period between 23 July and 1 September 1993, she did not actually do any work.

There is no doubt at all that if the Respondent can bring herself within sub-paragraph 9(1)(b) of Schedule 13, she can count the period between 23 July and 1 September 1993 as a period of employment, despite the fact that, as is common ground, she had no contract of employment during that period. Having had the benefit of able submissions on each side, we accept that we must follow the case of Byrne v City of Birmingham District Council [1987] IRLR 191, so that, on our interpretation of that decision, if work was available during that period to be done, but was allocated to Mrs Phippen rather than the Applicant, it is clear that there would be no cessation of work, since the "quantum of work" would not have been altered in any way. Lord Justice Purchas's judgment in Byrne at paragraph 13 page 193 provides:

"... The expression `cessation of work' must denote that some `quantum of work' had for the time being ceased to exist, and, therefore, was no longer available to the employer to give to the employee."...

That authority, which is binding on us, was followed by the E.A.T. as appears in the head note, in the case of Letheby & Christopher Ltd v Bond [1988] ICR 480, where it was held:

"... that where work was available for an employee even if it was not offered there could not be a cessation of work within the meaning of paragraph 9(1)(b) of Schedule 13 to the Act of 1978; and that since the industrial tribunal had found that work was available during the applicant's week's absence in September 1985, she could not be said to have been absent on account of a temporary cessation of work and her continuity of employment was not preserved."

We are bound by the decision in Byrne and we fully recognise that fact.

However, in both those cases, by which we mean Byrne and Letheby, there is no doubt in our judgment that actual work was available. Thus in Byrne there was actual cleaning work which could be done and was being done by persons other than the Applicant to the Industrial Tribunal in that case, and in relation to Letheby, there was actual bar work available to be done in the case of the Applicant in the Letheby case.

The position in this case, in our judgment, is that, on the finding of fact of the Industrial Tribunal in paragraph 10 of their decision, although it is correct that Mrs Phippen had a contract of employment, no doubt for exactly the same post for the period in question, and equally clear that she was being fully paid under that contract, the Industrial Tribunal found, in our judgment unambiguously, that there was no actual work being carried out by Mrs Phippen during the period in question. Thus, if the expression "cessation of work" in sub- paragraph 9(1)(b) means "cessation of actual work" i.e. actual duties being done by a teacher, namely teaching in class, then in our judgment, there had been a cessation of work on the findings of fact of the Industrial Tribunal, since no such actual work was being done. Thus, during that period, a "quantum of work", namely teaching in the classroom, had indeed ceased to exist.

It is Counsel for the Respondent, Mr Brennan's, submission that that is what the expression does mean in sub-paragraph 9(1)(b). He relies, amongst other submissions, upon two passages in Lord Diplock's judgment in Ford v Warwickshire County Council [1983] IRLR page 126. Mr Brennan relies upon the whole tenor of that judgment, but in particular upon what the learned Law Lord said at page 129 paragraph 9 of the judgment in these terms:

"My Lords since para.9 only applies to an interval of time between the coming to and end of one contract of employment and the beginning of a fresh contract of employment, the expression `absent from work', where it appears in 9(1)(b), (c) and (d), must mean not only that the employee is not doing any actual work for his employer but that there is no contract of employment subsisting between him and his employer that would entitle the latter to require him to do any work."...

It is that passage and a few lines beyond that passage, that is relied upon, but particularly and additionally a further passage at paragraph 16:

"From the fact that there is no work available for the employee to do for the employer during the whole of the interval between the end of one fixed-term contract of employment and the beginning of the next, and that this was the reason for his non-employment during that interval, it does not necessarily follow that the interval constitutes a `temporary cessation of work.'

Mr Brennan submits that it is plain from those extracts from that judgment, and from the whole tenor of that judgment, that in paragraph 9 "work" means "actual work", actual performance of duties under the contract. Mr Brennan submits that the expression does not mean "employment" or "being employed under a contract of employment", let alone "occupation under a post". It means and only means actual work i.e. the actual performance of duties which the employee can be required to carry out under a contract of employment.

Mr Hunter, on the other hand, Counsel for the Appellants, submits that we should apply the same meaning to work in sub-paragraph 9(1)(b) of Schedule 13 to that given to the expression "starts work" in Section 151(3) of the Employment Act 1978, in accordance with the decision of the E.A.T. in Salvation Army v Dewsbury [1984] ICR 498. In that case the E.A.T. held that the expression "starts work" in Section 151(3) of the 1978 Act meant the beginning of the employee's employment under a contract of employment, rather than the undertaking of the full-time duties of employment: so that a teacher started work on 1 May 1982 when she came under contract, although she did not actually start teaching until 4 May. It was Mr Hunter's submission that we should adopt a similar construction to the meaning of work in paragraph 9 of Schedule 13; especially, as he submitted to us, because it is apparent from the judgment of Mr Justice Nolan that the learned Judge was basing his interpretation of the meaning of the expression "starts work" by reference to Schedule 13 of 1978 Act at least in regard to sub-paragraph 5(1) of that Schedule.

We must repeat that we have found this a difficult point of construction. At the end of the day we have concluded that we find that the context of paragraph 9 is different from that of Section 151(3) and indeed sub-paragraph 5(1) of Schedule 13, where the expression "work" is used as a synonym for employment. In our judgment Mr Brennan is right in submitting that, in the context of a person being incapable of work sub-paragraph 9(1)(a)) through sickness or injury, or absent from work wholly or partly because of pregnancy or confinement (sub-paragraph 9(1)(d)), and in circumstances where paragraph 9 is concerned with a situation where there is no contract of employment, that the expression "work" in paragraph 9, must, in our judgment mean, the performance of actual duties, which, if there was a contract of employment, a person could be required to carry out. Mr Hunter sought to persuade us as an alternative submission that the finding of the Industrial Tribunal was ambiguous and that we should take judicial notice of what Mr Justice Nolan said in the Salvation Army case, particularly at page 502 C-E, namely:

"... We were told that it is quite normal for teachers to be employed with effect from 1 September in a year, but not to undertake full-time duties until the school term begins some time later this month. The phrase "starts work" consists of a simple English pair of monosyllables, but its application to the case of a teacher may be far from simple. Most, if not all, teachers may be expected to do preparatory work, involving reading or writing, before the term begins. Some of the most important preparatory work may consist simply of cogitation, an activity whose occurrence may be very difficult to prove or disprove."

Mr Hunter invited us to take judicial notice in respect of those observations and to find, in effect, that teachers do in fact do actual work during the summer holiday. We find ourselves quite unable to accept that submission. In our judgment, that would be to go behind the plain findings of the Industrial Tribunal in paragraph 10 of this decision. Mr Hunter also submitted to us that the finding was ambiguous and that therefore it would be appropriate for the matter to be remitted in any event to the Industrial Tribunal for their further consideration as to exactly what they meant by what they had said at the end of paragraph 10. Here again we must reject this submission. In our judgment, the finding of fact of the Industrial Tribunal is quite clearly expressed. In our judgment, the Appellants had a clear opportunity before the Industrial Tribunal to call such evidence as they deemed appropriate to establish there had been no cessation of work, and it was for them to establish, if they could, that Mrs Phippen was performing actual duties during the summer holiday, rather than her simply being under contract and paid.

Accordingly, for the reasons that we have stated, we find that there was a cessation of work here, since no work was actually being done by Mrs Phippen; although she remained under contract of employment and was paid as such. There is course no issue before us that the cessation of work was temporary, nor is there any other ground of appeal that has been developed before us in relation to whether the contracts are successive no point is taken about successive contracts. Accordingly, we find that the Industrial Tribunal were correct in their conclusion that the Respondent, Mrs Lawes, was absent on account of a temporary cessation of work between 23 July 1993 and 1 September 1993, within sub-paragraph 9(1)(b), so that period counts towards her employment, with a result that the appeal is dismissed.