United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P THORNTON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE PETER CLARK: The Respondents are a Sixth-Form College based in Palace Gate, London W8. From September 1983, by a series of short-term annual contracts which may be aggregated for continuity purposes, the Appellant taught Classics on a part-time basis.

In 1989 he accepted a warden-type role, providing some pastoral care to students in return for free board and lodging during term-time.

In 1995 the Respondent decided to reorganise its operation in such a way as to provide a formal residential element in the service which it offered to students. This involved the appointment of team leaders responsible for sport and recreational activities, as well as being hostel wardens. A new recruit, Mr Nimmo-Jones, was found to be suitable for this role. On the Tribunal's findings the Appellant was not.

Without prior consultation with the Appellant the Respondent offered him a further contract in August 1995 on a slightly reduced hourly rate (a reduction of about 4.4 per cent) and without the free board and lodging which he had enjoyed since 1989. He declined the new contract and was dismissed on expiry of his last contract. He presented a complaint of unfair dismissal.

The Respondent resisted the claim on the grounds that the reason for dismissal was some other substantial reason under what was then Section 57(2) of the Employment Protection (Consolidation) Act 1978, namely a reorganisation of the business. Further, it was submitted that the failure to consult did not render the dismissal unfair, relying on the Polkey exception, that is, those passages in the speeches of Lord Mackay LC and Lord Bridge in Polkey v A E Dayton Services Ltd [1987] ICR 142, in which their Lordships recognised that a dismissal may be fair despite the lack of consultation where such consultation would be futile or utterly useless.

The Industrial Tribunal sitting at London (North) accepted those submissions and for extended reasons given on 4 June 1996 dismissed the complaint.

Now there is an appeal. This is a preliminary hearing held to determine whether the appeal raises any arguable point or points of law.

Mr Thornton, who appears under the ELAAS scheme on behalf of the Appellant, advances the appeal on the following grounds.

His principal ground is that in their approach to the question of consultation the Industrial Tribunal reached a perverse decision in the sense that there was no evidence before the Tribunal to indicate that the lack of formal teaching qualification was material to the question of whether or not, following consultation, the Appellant might have been offered the team leader post which was in the event offered to Mr Nimmo-Jones. It seems to us that this is an arguable point which ought to go to a full hearing before the Employment Appeal Tribunal.

Secondly, he takes a point in relation to the way in which the Tribunal dealt with the reduction in pay. It is submitted that the only evidence before the Tribunal consisted of a one-page letter dated 2 August 1995 as a basis for the Tribunal's finding that there was a reduction in pay in order to bring the Appellant's rate of pay in line with other members of staff. Again, we think that this is a matter which ought to go forward to a full appeal hearing.

There are two further submissions made on behalf of the Appellant. The first is that on the basis of the House of Lords judgment in Ford v Warwickshire County Council [1983] ICR 273, it is submitted that the Appellant was not only continuously employed for 12 years, but was also entitled to 12 weeks' notice of dismissal, or pay in lieu under what was Section 49(1)(c) of the 1978 Act (now Section 86(1)(c) of the Employment Rights Act 1996). It is contended that the Respondent's failure to give such notice, or pay in lieu, on termination of his employment is relevant to a claim of unfair dismissal, as well as a claim for wrongful dismissal which was not advanced in the Originating Application.

We are unable to accept this submission. Ford is authority for the proposition that a series of short-term contracts may be counted together for the purposes of establishing continuous employment. That was not disputed in this case. The Appellant was treated as having been continuously employed for 12 years for the purposes of qualifying for unfair dismissal protection. Secondly, the House of Lords accepted that expiry of the final fixed term contract without its being renewed amounted to a dismissal. Again, that is not in dispute in this case. What Ford did not decide, in our judgment, is that an employee who is dismissed by virtue of the expiry of a fixed term contract without renewal is entitled to notice of termination of the contract for the purposes of what is now Section 86 of the 1996 Act. The statutory minimum period of notice provided for in that section only applies where the contract is terminable on notice. Here, it terminated on the expiry of the fixed-term by effluxion of time. No notice was necessary.

The final point is in relation to the question of constructive dismissal. We are unable to see the relevance of this submission in relation to this case, because it proceeded on the footing that there was a dismissal. Whether it was an actual, constructive, or expiry of a fixed-term contract dismissal is immaterial.

In those circumstances we shall not permit this appeal to proceed on those last two points. The result is that looking at the existing Notice of Appeal we shall delete those grounds of appeal numbered 3 and that ground which is headed "Constructive Dismissal". Further, we shall delete the ground headed "Procedural Irregularities".

As to the two remaining grounds, the Appellant has leave to apply within 14 days for leave to amend his Notice of Appeal if so advised.

Finally, we should deal with an application by Mr Thornton for the Chairman's notes of evidence. We do not regard it as necessary for the whole of the notes of evidence to be produced, but we think that notes of such evidence as deal with the following three points should be produced by the Chairman.

(1) In relation to the question as to whether or not the Applicant was ineligible for the job of team leader which was given to Mr Nimmo-Jones.

(2) Evidence as to the relevance, if any, of the Appellant's lack of formal teaching qualifications.

(3) Evidence as to the reasons for the change in the rate of pay over and above the letter of 2 August 1995.