United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Appellant neither present nor represented


 


JUDGE ALTMAN

1. This is an appeal from the decision of the Employment Tribunal sitting at London (South) on 6 December 1999. It comes before us by way of preliminary hearing to determine whether there is a point of law sufficient to merit argument in full before the Employment Appeal Tribunal.
2. In addition, this matter comes before us by way of an appeal from the Chairman's refusal of 21 January 2000 to supply extended reasons. The Appellant has not appeared today, he has been telephoned at his home but there has been no answer and he does know of today's hearing. We have therefore considered the matter on the paper material that is before us.
3. The hearing took place on 6 December 1999, and on 13 December 1999 summary reasons were promulgated. On 3 January 2000 the last day for requesting extended reasons arrived. On 18 January the Appellant filed a notice of appeal. On 20 January he was notified through his solicitors, who have acted throughout in these proceedings, that such notice could not be accepted unless supported by extended reasons. It appears, although we are not clear from the wording of the letter, that 25 January was the first occasion on which a letter was written requesting extended reasons. That was in any event a day after expiry of the time limit for an appeal. The solicitors were asked to give an explanation for the delay and they sought to explain the delay by saying that it was not until 10 January that the Appellant's solicitors were notified that the union would support the appeal, although that does not appear to explain the fifteen days that passed between then and the letter requesting extended reasons.
4. On 28 January the request for an extension of time was refused by a Chairman of Tribunals, in the form of a letter which we have treated for the purpose of this judgement as an order. The point was made that throughout the Appellant was represented by his Trade Union and solicitors and that their error was not a good ground for extending a time limit known to such representatives.
5. We are satisfied that that decision was arrived at in exercise of the discretion which the Chairman enjoys and we have been able to discern no error of law in that respect. Accordingly the appeal from that refusal is dismissed.
6. However, we have gone on to consider the substantive appeal. The summary reasons were long reasons covering something like two side and running to ten paragraphs, one of which has seven sub-paragraphs and the basic facts of the case were agreed. Although the word "summary" appears in the decision, we are satisfied that for the purpose of mounting an appeal this decision did effectively contain extended reasons and we so treat that document.
7. Insofar as the Notice of Appeal is made out of time because on 18 January it was not a valid Notice of Appeal because it was not accompanied by extended reasons we extend the time so as to validate the Notice of Appeal.
8. We turn now to the substance of the argument. The Appellant was employed initially from 26 February 1996 under a casual contract of employment intended to last for approximately a year. He then had a one year fixed term contract of employment acknowledging that he would not claim unfair dismissal if his contract was not renewed. That was then repeated in the following year and for the year after that the Appellant was given a fixed term contract for a short period from 26 February 1999 to 5 April 1999. That did not specifically contain a waiver of statutory rights, so far as unfair dismissal was concerned, and that contract was not renewed. The argument on the appeal is that the Employment Tribunal erred in its interpretation of Section 197 of the Employment Rights Act 1996 having regard to the decision of the Court of Appeal in British Broadcasting Corporation –v- Kelly Phillips (1998) IRLR 294. It also suggested that they erred in considering that they needed to look at the substance of the matter rather than merely the wording of the contract alone.

We have considered the way in which the matter was described and that is that the Employment Tribunal find as follows: -

"The Tribunal considered carefully the contract under which the (Appellants) employment was renewed for a fixed period from 26 February 1999 to the 5 April 1999 a period of substantially less than one year. On the face of it that contract is entirely self-contained. However, the Tribunal considered that it needed to look at the substance of the matter rather than merely the wording of the contract alone. The fact is that the 1999 contract ran from the end of the previous written contract without a break and the Applicant's employment continued without a break. The 1999 contract was in essence an extension even though the contract does not refer to an extension. The 1999 contract was on substantially the same terms as the previous contract."

"In those circumstances, the Tribunal finds that the 1999 contract was an extension of the 1998 contract under which the Applicant had waived his unfair dismissal rights"

Section 197 of the Employment Rights Act 1996 provides: -

"Part 10 does not apply to dismissal from employment under a contract for a fixed term of one year or more if (a) the dismissal consists only of the expiry of that term without its being renewed and (b) before the term expires the employee has agreed in writing to exclude any claim in respect of rights under that part in relation to the contract."

Where an agreement such as mentioned in sub section 3 is made during the currency of a fixed term, and the term is renewed the agreement shall not be construed as applying to the term as renewed,"

but the sub section is without prejudice to making a further agreement in relation to the renewed term.

9. The effect of British Broadcasting Corporation –v- Kelly Phillips it seems to us is that if the new term for less than a year is an extension of the original contract so as to be part and parcel of it, the extended period is covered by the original waiver just as the original part there was. It seems to us that on the facts as found by this Tribunal, as a matter of construction there was continuity of the original contract and it constituted an extension of it in the way found by the Employment Tribunal. We reject the proposition that there was an arguable case that the Employment Tribunal erred in law in that construction of the contract. Accordingly this appeal is dismissed at this preliminary stage.