United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MR JUSTICE KIRKWOOD: This is the preliminary hearing of an appeal by Dr Landels from the decision of an Industrial Tribunal that sat in Brighton on 21st May 1997. The tribunal found that the appellant had not been dismissed from his employment with the Open University, and consequently his claims for unfair dismissal by unfair selection for redundancy, redundancy payment and for breach of contract did not succeed.

In its broadest outline the position is that Dr Landels first began engagement as a tutor with the Open University in November 1970, contracted to act as tutor on a particular course. Over the following years he entered into agreements with the Open University to work as tutor or tutor counsellor or something similar on different courses; and, from a date not ascertained in the extended reasons, on a programme called T102. Dr Landels was, I understand, attached to the Worthing area of activities of the Open University. Course T102 was one of three courses in respect of which Dr Landels had agreements with the Open University.

Course T102 was not continued after the academic year ending in October 1996 and it was essentially in respect of that that Dr Landels made his application to the Industrial Tribunal and he raised various arguments upon that.

At the centre of the dispute that came before the tribunal was the question whether Dr Landels was in truth employed by the Open University on three different contracts, or whether the proper interpretation was that he was employed under an umbrella contract, a single contract, so that the disappearance of one of his three areas of engagement did not effect his overall employment by the Open University. That was what the Open University argued.

Dr Landels points out that there was no umbrella contract, that it was plainly contemplated in the Open University's documents that tutors may be engaged on a number of contracts, and in fact (and of great practical importance) the bringing to an end of course T102 brought with it the end of something like 85% of his yearly earnings.

The Industrial Tribunal found that Dr Landels was employed under a single umbrella contract and consequently he remained in the Open University's employment, even though course T102 had come to an end and this was not a case of his employment ending or of redundancy.

We have heard Dr Landels briefly upon his skeleton argument which we have all read and we have reached the conclusion that there is a point for argument at a full hearing whether the arrangements with the Open University are properly to be regarded as arrangements under a single contract of employment or whether it is proper to regard the state of affairs as three quite separate contracts which are not united under a single umbrella. That is the key point in the case.

Dr Landels has said to us that he has criticisms of the way in which the hearing was conducted. The first is that the Chairman said that he intended to conclude the hearing at 3.30 p.m. because he had another engagement that day; that is controverted by the Chairman who has indicated in a letter of comment that his only concern was as to whether the case might be concluded in a day having regard to the number of witnesses involved; that in fact it went till 3.45 p.m.; and that he received no complaint and no indication of a complaint at the time that there was any discontent with the way in which the hearing had been conducted.

Secondly, Dr Landels says that at a very early stage of the hearing he was confronted with a bundle of documents of some 100 pages which he was allowed 30 minutes to read. Although that bundle contained a good deal of duplication of the material he had already produced himself, it did contain some material fresh to him, including something called a TAPP document, which I understand to be procedures to be used internally for discontinuing employment or redundancy and the like. It was not a document ever produced to tutorial staff, and Dr Landels says that that document contains crucial material to illustrate his point that this was three separate contracts.

There is no need for us to go into quite what happened about the 100 pages and whether there was time to read it, because that material was plainly before the Industrial Tribunal and it is material to which Dr Landels will be free to refer, if so advised, upon the hearing of the appeal.

For the rest of his skeleton argument, it is clear to us that the bulk of what he says goes to the point that I have identified as central to the case. To the extent that there is other matter as to whether the proper procedures were deployed for withdrawing the T102 course from Worthing and whether, as Dr Landels would contend, he was wrongly selected for redundancy, those ancillary matters are or are not relevant according to the decision of the main contractual point. If Dr Landels succeeds in the appeal on the main contractual point, it seems to us likely that those other matters, upon which the Industrial Tribunal did not adjudicate or did not adjudicate in any discernible detail, would have to go back to an Industrial Tribunal to be considered at a later stage in the light of the contractual interpretation put on the case by the Appeal Tribunal.

We are going to allow this case to go a full hearing on the question of whether there was as properly regarded one contract of employment or three separate and distinct contracts of engagement in place at the heart of this case. We allow it to go forward on that basis.