United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS L CHUDLEIGH (of Counsel) Messrs Cooper & Burnett Solicitors Napier House 14-16 Mount Ephraim Road Tunbridge Wells Kent TN1 1EE
For the Respondents	MR P EDWARDS (of Counsel) Messrs Male & Wagland 4 Barnet Road Potters Bar Hertfordshire EN6 2QT


 


JUDGE PETER CLARK: This is an appeal by Mrs Rega, the applicant before the Bedford Industrial Tribunal, against that tribunal's decision promulgated with extended reasons on 3rd October 1996, that she did not have two years continuous employment with the respondent, Ridge Crest Cleaning Services, prior to her alleged dismissal by the respondent on 3rd April 1996, and that accordingly her complaint of unfair dismissal failed through want of jurisdiction.

The background is as follows. In March 1993 the appellant commenced employment with Ocean Contract Cleaning Ltd ["OCC"] as an on site cleaning supervisor. In early 1994 she was employed principally at the premises of ABB, a customer of OCC. It was her evidence to the tribunal that on 28th March 1994 a heated exchange took place between her manager, Mr Bob Dennis, and a Mr Walby of ABB. As a result, Mr Walby denied the appellant access to ABB's premises. In late September 1994 Mr Walby reversed his decision, and following a site meeting held on 29th September the appellant was directed by her new manager, Mr Bullivant, to resume work at ABB's premises. She did so and continued to work there until the business of OCC was transferred to the respondent on 1st April 1996. It was the appellant's substantive case that in circumstances which arose at the time of the transfer she was constructively unfairly dismissed. We are not concerned with the merits of that claim in this appeal.

She presented her complaint of unfair dismissal on 14th May 1996. By their Notice of Appearance the respondents took the point that her period of continuous employment commenced on 28th September 1994, and that accordingly she had not completed two years service for the purpose of bringing her complaint,

That preliminary issue was tried over two days before the Industrial Tribunal on 8th August and 11th September 1996. The appellant appeared in person and the respondent was represented by Mr Carter, a director of the company. Although representing herself the appellant had received legal advice from solicitors. A record of that advice has been exhibited to an affidavit sworn by the appellant on 6th May 1997 and filed in this appeal pursuant to a direction made by this tribunal (Judge Levy QC presiding) at an ex parte preliminary hearing held on 25th April 1997. It is clear from that material that she was advised to argue that during the period March to October 1994 she remained in the employment of OCC, or at any rate was on the books and received holiday pay in June 1994. It is also clear that she was advised as to the question of continuity of employment being preserved in circumstances where there was no contract of employment but the employee was absent from work on account of a temporary cessation of work. (Employment Rights Act 1996 s. 212(3)(b).) The notes made by a trainee solicitor include reference to, and summaries of the relevant authorities, including Fitzgerald v Hall Russell & Co Ltd [1970] AC 984 and Byrne v City of Birmingham District Council [1987] IRLR 191.

The Industrial Tribunal Decision

The tribunal heard evidence from the appellant and a Mr Laker, who had been the managing director of OCC at the material time. On the basis of that oral evidence and the documents placed before them, the tribunal rejected the appellant's case that she had been employed by OCC under a contract between June 1994 and 29th September 1994, which was the date of her commencement of employment with OCC included in a written contract of employment which she signed on 6th October 1994.

Against that finding there is no appeal. The appeal is directed to the proposition that, as is the fact, the Industrial Tribunal written reasons contain no mention of the question as to whether, during the period when, as the tribunal found, there was no contract of employment, continuity was nevertheless preserved under s. 213(2)(b).

Mr Edwards, for the respondent, takes objection before us to this point being taken. He submits that it was not taken below and under the well-known principle propounded in Kumchyk v Derby City Council [1978] ICR 1116 and recently re-affirmed by the Court of Appeal, we should not allow it to be taken on appeal for the first time.

We are not satisfied that the point was not sufficiently apparent below in the light of a letter from the Chairman, Mr C Ash, to the Appeal Tribunal dated 1st July 1997, commenting on the appellant's affidavit which she was directed to file in order to deal with this very question by the order of Judge Levy and his colleagues sitting on 25th April 1997. He there states:

"although there is no express reference to Schedule 13 in the decision [that is Schedule 13 of the Employment Protection (Consolidation) Act 1978 - now Part XIV, Chapter 1 of the Employment Rights Act 1996] I am satisfied that we would have considered its provisions."

It follows, in our view, that the s. 212(3)(b) point, to which the appellant had been alerted by her solicitor, and which she states in her affidavit she put before the Industrial Tribunal, was sufficiently taken to require an adjudication on it by the tribunal.

In these circumstances Miss Chudleigh submits that, in accordance with rule 10(3) of the Industrial Tribunal Rules of Procedure, the tribunal reasons are defective in that they fail to show why the parties have won or lost on the s. 212(3)(b) point. See Meek v City of Birmingham District Council [1987] IRLR 250. Indeed she goes further and submits that in the absence of reasons explaining why the appellant has lost on the argument that continuity was preserved under s. 212(3)(b) the decision is a nullity, and must therefore be set aside and the case remitted to a fresh Industrial Tribunal for a complete rehearing.

In support of that proposition she relies on the judgment of Browne-Wilkinson J in a decision of this tribunal Guest v Alpine Soft Drinks Ltd [1982] ICR 110. In that case, on a complaint of unlawful sex discrimination, the respondent conceded unlawful discrimination and agreed to make a payment to the applicant of £160 to represent her loss of the opportunity to secure the job for which she had applied to the respondent and been turned down on the grounds of her sex. The matter returned to the Industrial Tribunal for determination of a disputed claim by the applicant for damages for injury to her feeling and on the question of costs. The Industrial Tribunal promulgated a decision recording that it made no award for the applicant's injury to feelings and ordered the respondent to pay £200 costs.

On the applicant's appeal against the decision not to award compensation for injury to feelings, this tribunal accepted the submission made on her behalf that since the decision gave no reasons for refusing to award compensation for injury to feelings it was a nullity. Accordingly the appeal was allowed and the issue of damages for injury to feelings was remitted to a fresh Industrial Tribunal for reconsideration.

In our judgment that case is to be distinguished from the present case. Here, reasons were given for the tribunal's decision that the appellant did not have two years continuous service; the decision is not a nullity. The position is that inadequate reasons were given, in that the s. 212(3)(b) point is not expressly dealt with.

Does that nevertheless mean that the appeal must be allowed? One possibility is to require the Industrial Tribunal to provide those reasons which are presently incomplete. Yusuf v Aberplace [1984] ICR 850. Another possibility is to allow the appeal and remit the matter to a fresh Industrial Tribunal for rehearing. A third possibility is to consider whether, notwithstanding the error of law, the Industrial Tribunal's conclusion is "plainly and unarguably right" and to dismiss the appeal. Dobie v Burns [1984] ICR 812.

Dealing with that third possibility we have considered whether, on the basis of the appellant's case, there is any prospect of an Industrial Tribunal finding that her absence from work between June and October 1994 fell within the provisions of s. 212(3)(b).

Miss Chudleigh argues that in the absence of any reasons expressed by the Industrial Tribunal dealing with this point, or the Chairman's Notes of Evidence, we are not in a position to establish the true factual position relevant to this issue. We reject that submission. We have before us the appellant's affidavit, exhibiting the written statement which she read to the Industrial Tribunal. We have also admitted, on the appellant's application, a written statement from her manager, Mr Dennis, contained in a letter dated 19th January 1997. The factual position is clear from that material. Miss Chudleigh suggests that other evidence might be given which gave a different picture, but has not specified what that evidence might be. We propose to approach the matter on the basis of the appellant's own case.

On that basis it is clear to us that the factual position is as follows. Following the appellant's removal from the supervising position at ABB in late March 1994, she was replaced as supervisor at that site by another employee of OCC. Following the meeting held on 29th September 1994 the appellant was in turn substituted for her replacement.

Given the finding of the Industrial Tribunal, unchallenged in this appeal, that no contract of employment existed between the appellant and OCC between June and October 1994, the first question in law is whether the appellant's absence from work during that period was due to a cessation of work.

Miss Chudleigh relies upon the speeches of the House of Lords in Fitzgerald for the proposition that what must be looked at is whether there was a cessation of the employee's work or of work for the employee and not the employer's work. However, that case and those speeches must be read in the light of the further guidance provided by the Court of Appeal in Byrne. The ratio in Byrne is to be found in the judgment of Purches LJ at paragraph 13, where he said:

"I accept Mr Elias's [Counsel for the employer] submissions in this case that the circumstances in which Mr Byrne ceased to be employed during the critical period did not arise out of the lack of availability of work for him in the sense that there was a cessation of that work, but merely that the work which was available to him was under the pooling arrangement given to someone else. The expression 'cessation of work' must denote that '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. I do not think that the speeches in Fitzgerald's case support Mr White's contention that it is sufficient merely to establish that the employee in fact does not work for some reason or other at the instance of the employer to qualify for relief under para.9(1)(b) of the Schedule [now s. 212(3)(b) of the 1996 Act]."

In our judgment no distinction in principle can be made between the facts in Byrne and the facts on the appellant's case, here. There was no reduction in the quantum of the work at ABB during the relevant period. The appellant was not working there because she had been barred by the customer.

In these circumstances we have concluded that the argument raised under s. 212(3)(b) is doomed to failure. The Industrial Tribunal decision is plainly and unarguably right. In these circumstances, notwithstanding the tribunal's failure to give adequate and complete reasons for its decision, we shall dismiss this appeal.

Finally, a point was taken in the amended Notice of Appeal and mentioned in Miss Chudleigh's skeleton argument relating to the conduct of the proceedings by the Industrial Tribunal Chairman, in particular, that the appellant suffered an episode of petit mal epileptic fit on the second day of the tribunal hearing and it is there said that the Chairman ought to have adjourned the proceedings. That point has not been specifically advanced in oral submissions, but we have considered it. Looking at the affidavit sworn by the appellant, it would appear that apart from a break which the Chairman granted in the proceedings, there was no application to adjourn the proceedings to another day. In these circumstances, we do not find that there was misconduct on the part of the Chairman such as to vitiate the decision.

Legal Aid taxation granted for the appellant, but leave to appeal to the Court of Appeal is not granted for the reasons which we have given.