United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G CLAYTON (Solicitor) Hamilton House Mabledon Place London WC1H 9BD


 


JUDGE REID QC: This is an ex parte preliminary hearing on an appeal by Mr Puncher against a decision of an Employment Tribunal sitting at Lincoln on 29th March 2000, by which they dismissed his application.

1. The issue between the parties was whether or not Mr Puncher had validly contracted out of his rights. The relevant paragraph in his contract of employment as a associate tutor at the Higher Education College in Lincoln was in these terms:

"In accordance with Section 142 of the Employment Protection (Consolidation) Act 1978, I agree to waive my claim unfair dismissal/statutory redundancy payments on termination of the fixed term without renewal."

That section in fact had become section 197 of the Employment Rights Act 1996 and has now been repealed but it was in force at the effective date of termination of Mr Puncher's employment on 6th July 1998.

2. Mr Puncher, like many another teacher in places of higher education, was employed year by year on so-called annual contracts of employment, that is to say a contract for the provision of teaching services over an academic year, each contract being one which came to an end at the end of the summer term and each successive contract starting at the beginning of the autumn term.
3. Mr Puncher says that his contract was not renewed for an eighth year and the reason put forward was redundancy. The reason for selection was said to be conduct or capability.
4. The question that arose was whether the waiver clause was valid, because to be valid there had to be fixed term contract for more than one year.
5. The point that was taken against Mr Puncher was that one looked at the series of contracts and took them together for the purpose of continuity and that equally one looked at the totality of the contracts and then asked at the end of it all, "well, when you look at it, (a) was there a fixed term and (b) was it in totality for more than year"? The tribunal took the view that there was and as a result the case fell, as the tribunal thought, within the decision of Ford v Warwickshire County Council [1983] IRLR 126 and the tribunal therefore held that the waiver clause was valid.
6. What is said is that the tribunal confused two different matters. First, the statutory provisions relating to continuity of employment and secondly, the statutory provisions relating to the waiver of redundancy and other rights. It is said that the fact that Mr Puncher had for the purposes of continuity seven years employment did not mean that his last contract, which was for less than a year being from the beginning of one academic year to the end of it, a period of about nine or ten months, was transmogrified into a contract for a fixed term for a year or more.
7. That seems to us to be an area of law on which there is a fair amount of authority and it cannot be said that all those authorities point in the same direction. In those circumstances, we take the view that this is a matter which ought to be properly argued at a full hearing and we so direct. It is a nice simple question to state, the answer may be more complicated, and there is no need for any Notes of Evidence or the like.
8. The appropriate category is Category B and given the amount of authority that may well be cited, we think it would be prudent to estimate it for one day.