United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Appellant in Person
For the Respondent	MR J BUTTERWORTH (Representative) IRPC Group Ltd 4 Elmcroft Close Eaton Rise Ealing London W5 2HQ


 


HIS HONORABLE JUDGE CLARK

1. This is an appeal by Mr White, the Applicant before an Employment Tribunal sitting at London (South) (Chairman: Miss R A Lester) on 26 July 1999 against that Employment Tribunal's decision promulgated with extended reasons on 25 August 1999. The sole issue for us at this full hearing, identified by a division presided over by Mr Commissioner Howell QC at a preliminary hearing held on 12 January 2000, is whether the Employment Tribunal erred in law in finding that the contract under which the Applicant was employed by the Respondent, Entech Technical Solutions Ltd, was terminable by the Respondent on one week's notice. It was and is the Applicant's case that he was employed under a fixed term contract and that on early termination by the Respondent he was entitled to his remuneration due for the balance of the contract term.

The Facts

2. The Respondent is an employment Agency. In late November 1998 the Applicant, who was then unemployed, saw an advertisement placed by the Respondent in the Bromley Job Centre. That advertisement referred to a vacancy for Installation Fitter in the Croydon area. The rate of pay was said to be £248 per week. (£6.20 per hour); it gave the hours of work and added this

"Duration: 9 months."

3. The Applicant enquired about the vacancy and was invited to interview with the Respondent's client, Systech Solutions Ltd on 9 December 1998. He was successful and was to start work on 21 December.
4. At the interview the Applicant was offered a rate of pay of £7 per hour and told that the job was to be for six months with the possibility of further work. Nothing was then said about terms as to notice, sick pay or holiday entitlement.
5. The Applicant worked two nights prior to Christmas at Systech and two nights during the following week. On 23 December 1998 the Respondent wrote to the Applicant a letter setting out the principal terms on which they intended to engage the Applicant. It was then envisaged that he would work for them "under LTD tax status," that is, as an independent contractor trading through his own company, rather than being employed by the Respondent. The letter contained the Respondent's standard terms & conditions, which emphasised that the worker was engaged on a self employed basis. Clause 11 provided that the agreement could be terminated by either party on 7 days notice in certain specified eventualities. The Applicant declined to sign that agreement, preferring to be employed on a PAYE basis. No subsequent written agreement was entered into between the parties on such a basis.
6. A dispute arose over the payment of wages with which we are not concerned in this appeal. By a letter dated 5 February 1999 Mr Golding of the Respondent terminated the Applicant's employment, it being now accepted that he was an employee, with immediate effect. Subsequently the Respondent paid the Applicant the sum of £200, said to represent one week's pay in lieu of notice.

The Employment Tribunal's Decision

7. On the question of notice the Employment Tribunal held, at paragraph 11 of their reasons, that the Applicant was not employed under a Fixed-Term contract as he contended. They found that the advertisement in the Job Centre referred to a maximum, rather than minimum period of employment. It was to be implied that the employment was subject to termination on reasonable notice. In the circumstance of this case reasonable notice was one week's notice, the minimum notice provided for in Section 86 of the Employment Rights Act 1996 for a person with the Applicant's length of service. They found that one week's pay was £290. Only £200 had been paid. The Applicant was entitled to a shortfall of £90.

The Appeal

8. We begin with two preliminary matters. First, Mr white applies for an order under Rule 26 of the Employment Appeal Tribunal Rules that the Respondent be debarred from taking any further part in the proceedings on the ground that it has failed to lodge and serve on the Applicant a skeleton argument not less than 14 days before today in breach of the order made at the preliminary hearing on 12 January 2000. A copy of Mr Butterworth's skeleton argument was served on the Employment Appeal Tribunal by fax on 29 May 2000, 4 days late and on the Applicant on the following day.
9. It is a matter for regret that orders for the service of skeleton arguments; in line with our Practice Direction, are more often honoured in the breach than by their observance. We accept that we have power under Rule 26 to make a debarring order in the circumstances of this case. However that power is discretionary. Having considered the contents of Mr Butterworth's skeleton argument and heard from Mr White we are quite satisfied that the he has had sufficient opportunity to deal with the case there advanced. In these circumstances we shall permit the Respondent to take part in this hearing and we have heard submissions from Mr Butterworth.
10. The second matter concerns Mr White's application to adduce in evidence before us certain documentary material which was not before the Employment Tribunal. We have gone through those documents with the Applicant and we have concluded applying the principles to be found in Wileman –v- Minilec Engineering Ltd (1988) ICR 318 that there are no proper circumstances in which to admit any of those documents. Accordingly we have not done so.
11. Turning to the substance of the appeal, Mr White submits that on the evidence the Employment Tribunal was bound to conclude that the contract under which he was employed by the Respondent was for a fixed-term of six months (the period mentioned at interview on 9 December).
12. We think that there are two answers to that submission. First, this was not a fixed-term contract. The Employment Tribunal were referred to the Employment Appeal Tribunal decision (Kilner-Brown J presiding) in Ryan –v- Shipboard Maintenance Ltd (1980) IRLR 16. There, the Employment Appeal Tribunal held that a contract with no prior fixed date of termination other than the completion of the job at some time in the future was not capable of being a fixed-term contract for the purpose of what was then Section 83(2)(b) of the Employment Consolidation Act 1978 (now Section 136(1)(b) Employment Rights Act 1996). That decision conflicted with the approach taken by a different division of the Employment Appeal Tribunal (Phillips J presiding) in Wiltshire County Council –v- NATFHE (1978) IRLR 301. However, that conflict was resolved in favour of the approach taken in Ryan by the Court of Appeal in Wiltshire County Council –v- NATFHE (1980) ICR 455. There Lord Denning MR and Lawton LJ held that a contract which was terminable on the happening of a specified future event at some uncertain future time was not a contract for a fixed term, Lawton LJ observing that a "fixed-term" is one which has a defined beginning and a defined end. Applying the Court of Appeal guidance we are satisfied that the Employment Tribunal was entitled to find, on the evidence, that employment on a particular project which was estimated to last for about six months, did not amount to a fixed-term contract. Specifically, at paragraph 11 of their reasons the Employment Tribunal makes this finding: _

"The Tribunal did not accept that there was firm evidence that the Respondent had itself promised the Applicant such a contract or any fixed-term contract."

13. That finding we think is supported by evidence given by Mr Golding, who said that the Applicant had not been guaranteed six months work with Systech. It is clear to us that that evidence was accepted by the Employment Tribunal.
14. The second point we should make is that a fixed-term contract may nevertheless be terminable on notice during the its term. See Dixon –v- BBC (1979) ICR 281, (Court of Appeal) disapproving the court's earlier decision in BBC –v- Ioannou (1975) ICR 267.
15. We conclude that it was open to the Employment Tribunal to find that there was to be implied into the contract, in the absence of express agreement, oral or in writing, a term that the contract was terminable on reasonable notice, and that a reasonable notice on the facts of this case was the statutory minimum of one week.
16. Accordingly we shall dismiss this appeal.