United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR M KURREIN (of Counsel) Legal Services Directorate of Corporate Services City Hall Bradford BD1 1HY
For the Respondent	MISS S MOOR (of Counsel) Messrs Gordon Wright & Wright Solicitors 14 Piccadilly Bradford West Yorkshire BD1 3LX


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal by the City of Bradford Metropolitan Council ["the Council"] from an Industrial Tribunal's decision following a hearing at Leeds on 19th November 1997. The tribunal unanimously held that Mrs Dawson was continuously employed by the Council from 9th December 1991 to 27th April 1997.

The essential facts as found by the tribunal were that Mrs Dawson began work for the Council in the Directorate of Community & Environmental Services on 9th December 1991, working principally as an usherette at Bradford theatres. This employment continued until 2nd June 1996 when she resigned from it, we call that "the first contract".

On 4th March 1996 Mrs Dawson also commenced employment with the Council's Directorate of Social Services at a care home for the elderly as a residential social worker. She was employed on a temporary contract until 31st October 1996 when the contract was renewed and extended until 27th April 1997 when it was terminated by dismissal, we will call that "the second contract.

The tribunal found that Mrs Dawson's employment was with the Council throughout the periods of employment with the Directorate of Community and Environmental Services and the Directorate of Social Services.

The tribunal held that Mrs Dawson was employed under successive contracts which for a time had been concurrent contracts. The tribunal, in reliance upon the dictum of Lord Denning MR in Wood v York City Council [1978] ICR 840 stated as there had been one single employer throughout the period of employment, Mrs Dawson was therefore employed for the single contractual period between 9th December 1991 and 27th April 1997, and accordingly, she had the requisite continuity of employment to claim unfair dismissal following her dismissal on 27th April 1997.

The question to be decided is whether, for the purposes of calculating Mrs Dawson's period of continuous employment, the Industrial Tribunal were right to aggregate the two periods, so that, although she was employed for less than the requisite period under the contract which terminated by dismissal, she could add to that period the time when she had been employed by the Council as an usherette.

Both parties accepted that the statutory provisions relating to continuity are a code which determines the question at issue. The relevant sections are to be found in Chapter I of Part XIV of the Employment Rights Act 1996.

Mr Kurrein, Counsel for the appellant, argued that where there was a situation of consecutive contracts which the same employer, there would be no doubt that there was continuous employment in accordance with the judgment in Wood v York City Council. By consecutive he meant one employment contract which came to an end and was followed, without a break, by another contract. He submitted, however, that the situation was different with concurrent contracts of employment. In that case each contract should be treated as a separate employment, with distinct dates of commencement and termination. Otherwise, Mr Kurrein submitted, it would lead to the absurd consequence that on termination of the second contract, an employee could claim to be dismissed with the requisite period of continuous service, even if the first contract was still continuing. Further, provided that the first contract had been running for the previous two years, the employee would be entitled to bring a complaint of unfair dismissal even if the second contract had been terminated after a week or a day.

Mr Kurrein directed our attention to the definition of dismissal contained in ss. 95(1) and 136(1) of the 1996 Act. That uses the definite article: thus it refers to "the contract under which he is employed" and to the particular terms of the contract in question. The references to "the" and "a" contract made it clear that Parliament had in mind a one contract situation. The focus of attention must be on the particular contract: the inquiry must be directed to the circumstances in which that individual contract had come to an end. He relied in particular on the case of Lewis v Surrey County Council [1987] IRLR 509. There, the employee had a number of concurrent contracts each of which was part-time, but under none of which was she employed for the requisite minimum number of hours to qualify as weeks which gave her continuity of employment. The House of Lords held that it was not possible to aggregate the hours worked under one contract with the hours worked under another, and accordingly, she did not have the requisite period of continuous service to bring a claim. Paragraph 6 and 7 of the report set out the ratio of the lead decision given by Lord Hailsham of St Marylebone and that should be taken together with paragraph 27 which is part of the speech of Lord Ackner.

"6 The respondent is a teacher of photography. Throughout her periods of engagement she was employed by the appellant on a series of fixed-term and part-time contracts at one or more of their educational establishments, situated respectively at Guildford, Farnham, and Epsom and latterly only at Epsom and Farnham. At the relevant time the contracts were by the term, or course at the relevant institution and department , and in consequence were intermitted amongst other interruptions by the usual vacations. Nothing would turn on these periods of intermission if the employee were entitled to add each terminal fixed-term contract to its predecessors or successors for the purposes of the calculations. See Ford v Warwickshire County Council [1983] IRLR 126. But each was a separate contract. None of the 'contracts' (if that be the right description for some fairly imprecise documents) was in any way colourable, improper or designed in any way to defeat the purposes of the Act of 1987 properly construed; either by finding of the Industrial Tribunal (which is unchallengable) or by concession or admission by or on behalf of the respondent (which after hearing argument on the point I believe to have been binding, as was the ultimate view formed by the Court of Appeal) the concurrent contracts were separate from and independent of one another, and though the practice operated so that the obligations under one did not conflict with the obligations under any other in time or place, did not form part of a single composite whole. Had this not been the case and had there been supporting evidence to enable one to conclude that, although expressed in different documents, there was in existence a single implied contract of service or a composite contract contained in the several documents, I might very well have taken a contrary view to that which I am now constrained to express.

7 The respondent's difficulty resides in the fact that she can only establish the requisite periods of continuous employment whether for deciding that 'the whole or part of the employee's relations with the employer was governed by a contract of employment which normally involved employment of 16 hours or more weekly' (Schedule 13, para.4) or for the purpose of considering whether 'the periods' (consecutive or otherwise) are to be treated as forming a single period of continuous employment if she is permitted to add both the hours and periods of work actually done under one engagement respectively to the hours and periods of work actually performed under one or more of the others. In my opinion neither computation will avail the respondent if it is once established that the engagements are quite separate and distinct from one another, and do not, in one way or another, form a part of a single composite whole - entitling the employee to add one to the other for both purposes. I give full weight to the provisions of s. 6 of the Interpretation Act 1978 in which, unless the contrary intention is implied, the singular embraces the plural and vice versa in the language of a statute. But in my view, once it is established that the 'contracts' involved were distinct and separate arrangements and did not form part of a single composite relationship. I do not believe that the Interpretation Act can avail the respondent. The whole structure of the Employment Protection Act 1978 read with Schedule 13 is built on the supposition that to create the qualifying period there must be a single relationship contained in a single contractual complex, whether oral, in writing, or implied, and whether or not contained in a single documents or a number of documents and there is no room therefore for importing into para.4 of Schedule 13 any such phrase as would give the meaning 'a contract or contracts of employment which normally, whether singly or collectively involve employment for 16 hours'. In my view the whole structure of the Act precludes this interpretation and accordingly neither the Interpretation Act 1978 not the ambivalence, in English, of the indefinite article, to which I referred in the argument before your Lordships, is available to the respondent. It must follow that the appeal must be allowed and the judgment of the Employment Appeal Tribunal restored.

...

22 I agree with the judgment of the Employment Appeal Tribunal that at the heart of the right to claim that a dismissal has been unfair or to make the corresponding claim in redundancy lies the loss of employment under the particular contract of employment in relation to which the complaint of termination is made. The relevant provisions all focus upon that particular contract. In the case of unfair dismissal, dismissal occurs when the contract in respect of which complaint is made is terminated (s.55). That complaint must be presented within three months of the termination of that contract (s.67). Moreover, if the complaint succeeds, the applicant received a basic award which reflects the hours worked under the contract in respect of which the complaint is made (Schedule 14). Schedule 13 lays down a detailed code to which reference has to be made in order to discover whether following the termination of a particular contract, the necessary qualifying period has been established, or to compute the length of such employment for the purposes of compensation. Accordingly, references to employment or contract of employment in Schedule 13 are focused upon the particular contract of employment in respect of which relief is claimed under the appropriate provision of the Act."

Mr Kurrein said that it was unfair on the employers if an employee could resign one position and then rely on the period of service in it to feed her entitlement to bring proceedings arising out of the later termination of the other. He accepted that Mrs Dawson had started work with the Council in 1991 within the meaning of s. 211(1)(a) of the 1996 Act, but qualified it by stating that the tribunal was asking when she started work in the Social Services Department. He further argued that although Mrs Dawson's relations with the Council were governed by a contract with the Council throughout the whole period from 1991, because for a time her relationship was governed by two separate concurrent contracts, the word "a" contract in s. 211(1)(a) meant "the" contract which was terminated in circumstances giving rise to claim in question. He accepted that had there been successive contracts, and one could say that the intention of the parties was that one employment should succeed the other, then the total period of employment could be taken into account. Wood v York City Council. But here, although there was one contract as at the date of dismissal, the tribunal should have asked itself what the parties intended when she took on the Social Services' contract, in the sense of asking whether it was intended that this contract should be regarded as a self-contained contract, separate and distinct from the other. When she resigned from being an usherette she gave up her acquired rights which may have stemmed from her years of service in that position. Accordingly, he argued that the Industrial Tribunal were wrong to have looked at Mrs Dawson's employment under the first contract. The two employments had to be considered separately.

Miss Moor, Counsel on behalf of Mrs Dawson, submitted that the tribunal was correct to find that the contracts were successive and that Mrs Dawson had been continually employed for the requisite period taking both contracts into account, following Wood v York City Council. Miss Moor submitted that the legislation relating to the calculation of continuous employment was drafted in such a way that the period started when the employee started work with the employer and finished, as in this case, on the effective date of termination. The work may have started under one contract and finished under another and separate and different contract. The attempt on behalf of the appellants to introduce notions of "intention" and "agreement" were inconsistent with the statutory scheme which was designed to set out a set of rules which could readily, if not always easily, be applied to any given factual situation. It is a truism that parties cannot by contract modify the statutory scheme and reference in Mr Kurrein's argument to intentions of the parties and what they had taken to have agreed, have no place in the subject under consideration. She submitted that whatever the position might be where an employee was at the relevant date an employee under two separate contracts, in this case Mrs Dawson was and had been for about a year working only one contract. The question at issue might be posed thus: why was it that because Mrs Dawson had for a short period enjoyed the benefit of two contracts been deprived of the continuity she would admittedly have enjoyed had the contracts just been consecutive. She submitted that the Lewis decision was essentially concerned with a different question, and the remarks of Lord Ackner at paragraph 27 were obiter. Neither of the two questions identified by Lord Ackner arose for decision in the present case. Finally she referred us to the decision of the Employment Appeal Tribunal where the decision of Wood v York City Council was followed in a case called Tipper v Roof Deck Ltd [1989] IRLR 419. In that case a lorry driver who had been employed for many years lost his driving licence. Out of sympathy, the employers found him a job clearing a site. When that work came to an end after a few months, the employee asked a redundancy payment and relied upon his continuous service from when he started work as a lorry driver to his dismissal. The Industrial Tribunal said that there was no sufficient continuity. The employee successfully appealed to the Employment Appeal Tribunal, which although expressing sympathy with the employer's position, held that there was continuity, although the reason for the dismissal was remitted back to the Industrial Tribunal.

S. 212(1) of the 1996 Act provides:

"(1) Any week during the whole or part of which an employee's relations with his employer are governed by a contract of employment counts in computing the employee's period of the employment."

The use of the indefinite article shows that, for the purpose of continuity, the tribunal should look at the whole employment relationship, during which there was any contract of employment in existence.

We do not understand the Lewis case to be saying anything different. Where there are two contracts running along side by side, it is not possible to allow the service or hours under one to feed the other, where the contracts are separate and distinct. But where, as here, at the relevant date (namely the termination of the second contract) there was only one contract, then there is no room for the application of the Lewis decision. As was accepted by both Counsel, s. 212(1) cannot mean that the tribunal looks only to the contract which has been terminated, because the employee may have changed jobs within the last few weeks before his dismissal, and started work under a new contract, having been employed for years in a different capacity by the same employer. It would not be possible to count the weeks under each contract when they are running concurrently and aggregate them for the purposes of ascertaining continuity. But s. 212 and the presumption in favour of continuity in s. 210(5), operates so as to enable a one contract employee to look back over the whole employment relationship, including the time when he enjoyed two employments with the same employer.

We are not persuaded by Mr Kurrein's plea, ad misere cordiam, that the result in this case works hardship or potential hardship. We ask the question: why should Mrs Dawson not be able to rely on her full past service with the Council? By working for them since 1991, she had earned certain rights. There is no sense of injustice that we can detect if she is able to rely on her past service as an usherette when complaining of the termination of her employment as a care worker.

Having heard the arguments of Counsel, which were expressed with commendable clarity, we are of the view that this appeal should be dismissed for the reasons which we have just stated. Whether there would have been a dismissal if one of the two concurrent contracts had been terminated at a time when she was employed under both contracts leaving the other one in place, is not an issue which arises on this appeal and we express no view about it.

We were asked for leave to appeal in this case. We refuse it. It seems to us in the first place that the factual situation which arose here is very unlikely to occur in practice. Secondly, in any event, we were, although entertained by Mr Kurrein's submissions, not impressed by their validity. We see no reason to think that the Industrial Tribunal has erred in law. Accordingly, leave will be refused.