United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr P O'Brien (of Counsel)
For the Respondent	Not represented


 


JUDGE J HICKS QC: The Appellant in this case Mr Wise was employed by the Respondent, which traded under the name of The Pine Store, and had been employed since 1986. But for any question of continuity of employment, therefore, on his dismissal in 1997 he would undoubtedly have qualified so as to bring his complaint of unfair dismissal within the jurisdiction of the Industrial Tribunal, but there had been an incident earlier in 1997 which caused the Tribunal to come to the conclusion that there was no jurisdiction to entertain his claim.

That incident consisted of his resignation on 26 March 1997, which was a Wednesday. That resignation was accepted. However, he changed his mind and the next day came back in the morning and asked if he could have his job back. The finding of the Tribunal was that the employer's managing director, Mr Sutherland, said that he was prepared to re-employ the Applicant but it would have to be a new contract and the Applicant would have to be able to undertake the duties of the new job. The Applicant went away to consider that and in the event took up employment again with effect from 1 April, which was the Tuesday of the following week.

There was therefore, on the finding of the Tribunal - and this is not in dispute -contractually an interruption of his employment from Wednesday of one week until the Tuesday of the next. The Tribunal on that basis held that there was also an interruption of employment (in so far as they gave separate consideration to the statutory position) for the purposes of the statutory jurisdiction and therefore that Mr Wise did not have the necessary qualifying period.

The appeal takes the point that continuity of employment for the purposes of the Appellant's complaint of unfair dismissal is not concluded by the contractual position. The Employment Rights Act has specific provisions which cover this type of case. It provides, to put it briefly because it is not a point that is really open to dispute, that for this purpose employment is to be dealt with on a week by week basis and that any week during the whole or part of which an employee's relations with his employers are governed by a contract of employment counts in computing the employee's period of entitlement, and that for this purpose a week runs from Saturday to Saturday. The crucial provision is Section 212, sub-section (1) of the Employment Rights Act 1976. Now it is beyond dispute that Mr Wise was employed up to Wednesday of one week and therefore that week counts, that he was employed from Tuesday of the next week and therefore that week counts, and that therefore on the statutory definition there was continuity of employment. Not only is that in our view plain on the construction of the statute, but the very point has been expressly decided on facts for all material purposes identical with those before us in the case of Carrington v Harwich Dock Co Ltd [1998] IRLR 567.

We conclude that the Tribunal therefore manifestly erred in law and that the appeal must be allowed. Having allowed the appeal, by the nature of the point in question there is no need or case for returning this point for further consideration by the Tribunal. We shall simply substitute our own decision that the Applicant, Mr Wise, has established the necessary continuity of employment to give the Industrial Tribunal jurisdiction and shall remit his application to the Tribunal for a hearing on the merits.