United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS J EADY (of Counsel) Instructed by: Ms S Gilbert Solicitor National Union of Journalists 314-320 Grays Inn Road London WC1X 8DP
For the Respondents	MR J BOWERS (of Counsel) Instructed by: Miss C Moran BBC Litigation Department 201 Wood Lane White City London W12 7TS


 


JUDGE PETER CLARK: In this appeal it is convenient first to set out the history of the matter.

By an Originating Application presented to the Central Office of Industrial Tribunals on 30th November 19995 ["the second complaint"] the appellant complained of unfair dismissal, redundancy and breach of contract on the part of his employer, the respondent, the British Broadcasting Corporation ["BBC"], arising out of his dismissal from its employment on 31st August 1995. He contended that for the purposes of those claims he had been continuously employed by the BBC from and since May 1978.

By its Notice of Appearance dated 21st February 1996, the BBC admitted the dismissal; advanced redundancy as the reason for dismissal and averred that the relevant period of continuous employment began on 4th April 1992.

In giving particulars of its case, the BBC contended that between November 1978 and September 1989, the appellant was engaged on a freelance basis first with BBC Radio London and later by its replacement GLR.

Following termination of the appellant's relationship with GLR in September 1989, to use a neutral expression, he presented an Originating Application to the Industrial Tribunal ["the first complaint"] alleging unfair dismissal. That claim was resisted partly on the ground that he was not an employee of the BBC, and was not continuously employed from November 1978.

The first complaint was compromised, and the agreement between the parties reduced into writing in an ACAS Form COT3 dated 27th March 1990 ["the ACAS agreement"] read as follows:

"The Respondent agrees to pay to the Applicant £2,500 in full and final settlement of all or any claims arising from the Applicant's association with the Respondent's radio station, Radio London and GLR and the cessation thereof, the same being paid without any admission of liability."

Reverting now to the second complaint, the BBC took a preliminary point, namely that as a result of the ACAS agreement it was not open to the appellant to rely on any period of continuous employment prior to the end of September 1989 for the purposes of the second complaint. For completeness, we should also point out that the BBC does not accept that there was an employment relationship between the parties between September 1989 and 4th April 1992.

That issue came before an Industrial Tribunal sitting at London (North) on 4th September 1997. The tribunal accepted the submission presented by Mr Bowers on behalf of the BBC, by reference to a passage in Foskett on Compromise Agreements, that the effect of the ACAS agreement was as set out above. Extended reasons for that decision are dated 26th September 1997.

Against that decision the appellant now appeals. Today he is represented by Miss Eady, who did not appear below. She advances an argument which was not put to the Industrial Tribunal, although Mr Bowers accepts that she cannot be precluded from presenting it to this tribunal on appeal.

Put simply, s.210(1) of the Employment Rights Act 1996 ["ERA"] provides that references in any provision of that Act to a period of continuous employment are (unless provision is expressly made to the contrary) to a period computed in accordance with Chapter I of Part XIV of the Act. it is not open to these parties, by agreement, to contract out of those provisions. Thus, in relation to the claims raised in the second complaint, it is for the Industrial Tribunal to apply the provisions of Chapter I of Part XIV to the facts, as yet not found, to determine the correct period of continuous employment for purposes of compensation should the claim succeed on liability in whole or in part.

She points to the scheme of Chapter I which provides, for example, under s.214 special provisions for redundancy payments whereby, if a redundancy payment is made to an employee following dismissal by reason of redundancy as defined under the Act, continuity will be broken for future redundancy purposes even although that employee is subsequently reinstated or re-engaged in circumstances where he would otherwise be entitled to count his full service under the provisions of Chapter I. That is an example of where he will be unable to count a period of service twice for the purposes of calculating two separate redundancy payments. Nevertheless, continuity will not be broken if he receives a payment following the first dismissal which is not made under the statutory scheme. see Rowan v Machinery Installations (South Wales) Ltd [1981] ICR 386 and Ross v Delrosa Caterers Ltd [1981] ICR 393.

Further, she submits that there is no power given by s.18 of the Industrial Tribunals Act 1996 ["ITA"] to an ACAS conciliation officer to take action in relation to a determination of an employee's continuous employment as opposed to a claim of the type exclusively identified in s.18(1)(d) of the ERA. Accordingly, the ACAS agreement in this case cannot operate to exclude the operation of the continuity provisions under Chapter I of Part XIV of the ERA for the purposes of s.203 of that Act.

In response, Mr Bowers maintains that the proper question in this case is whether the ACAS agreement, properly construed, has the binding effect, sanctioned by s.203, for which the respondent contends.

He invites us to approach the matter in this way. In the first complaint the appellant brought a claim for unfair dismissal which involved, as a necessary element or condition for success two disputed features; first that the appellant was an employee of the BBC and secondly, if so, his period of continuous employment prior to termination of his engagement in September 1989. The compromise agreement involved a limitation on the operation of the provisions as to continuity then to be found in s.151 and Schedule 13 to the Employment Protection (Consolidation) Act 1978. It was an agreement that limited the operation of what is now Chapter I, Part XIV of the ERA within the meaning of s.203(1)(a) of that Act, and one in respect of which a conciliation officer took action within the meaning of s.18(1)(d) of the ITA.

As a matter of construction, applying the approach to be found in Foskett on the Law and Practice of Compromise, Chapter 6, supported by the authority of the Court of Appeal in Knowles v Roberts [1869] 20 Law Times 473, the wording of the ACAS agreement was sufficiently wide to encompass a subsequent claim (the second complaint) which was based in part on service between 1978 and 1989, the statutory gateway to compensation in the claims raised in the second complaint, which was compromised between the parties in the ACAS agreement.

Having considered the rival contentions we prefer the statutory approach advanced by Miss Eady to the contractual approach espoused by Mr Bowers.

There is nothing in s.203(2)(e) of the ERA and s.18(1)(d) of the ITA which permits the parties to contract out of the statutory continuity provisions laid down in Chapter I of Part XIV of the ERA and what is now the Employment Protection (Continuity of Employment) Regulations 1996. Whatever may be the true construction of the ACAS agreement, it simply cannot have the effect in law contended for by Mr Bowers.

Parties cannot contract out of or into continuity of service for the purposes of claims such as unfair dismissal and redundancy payment entitlement brought under the ERA. It is a purely statutory concept. see Secretary of State for Employment v Globe Elastic [1979] ICR 706.

In these circumstances we shall allow this appeal and remit the matter to a fresh Industrial Tribunal for rehearing. It will be for the next Industrial Tribunal to decide, as a matter of fact and law, applying the statutory continuity provisions, whether any and if so which period of continuous employment exist between 1978 and 4th April 1992, when it is admitted by the respondent that the final period of employment began.