United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN BOWERS (Of Her Majesty's Counsel) Messrs CMS Cameron McKenna Solicitors Mitre House 160 Aldersgate Street London EC1A 4DD


 


JUDGE ALTMAN

1. This matter comes before us by way of Preliminary Hearing and we have resolved to permit the matter to go forward before the Employment Appeal Tribunal. We have some considerable reluctance bearing in mind important cases in this area of the law such as Flack & Others v Kodak Ltd [1986] IRLR 255 and Ford v Warwickshire County Council [1983] IRLR 126.
2. The courts emphasise repeatedly that is an issue of fact for the Tribunal to decide. We are conscious that in this case the periods of employment were of substantial length. The gaps between them were shorter than the periods of employment but applying the test of adding the two periods of employment at either side of a period of non-employment, to see if the period of non-employment is relatively shorter.
3. We are conscious of the finding of the Tribunal in paragraph 4 as to the organisation of the Respondents and the apparently important finding of fact in paragraph 5 of the expectation of re-engagement as part of a "pattern", interestingly a word used in paragraph 19 of the decision.
4. We are conscious of the fact that the Ford case is dealing with fixed term contracts and that the Flack case is dealing with a situation in which the courts thought there might well be temporary cessation of work. We are conscious of the fact that in the Flack case, Lord Justice Wolf suggested that the words of Lord Diplock in Ford were intended, effectively, as no more than giving guidance
5. We are conscious of the danger of employers having devices to evade legislation and we are conscious that the Employment Tribunal directed itself not only to its findings of fact but to the relevant section of the Act and the case law on this matter.
6. Therefore, against the background of the finding of fact that is required to be within the discretion of the Tribunal, we have hesitated to permit the matter to go forward. Nonetheless, it does seem to us that, looking at paragraph 19 of the decision, it is right that there should be full argument, on the one hand as to whether the Employment Tribunal were then applying the correct tests and bore in mind the guidance of transience and relatively short periods of time, or on the other as to whether it is right to look at the whole body of the decision and the earlier findings of fact in interpreting what the Tribunal had in mind.
7. Bearing that in mind and bearing in mind that we understand that this case, in a sense, does not stand alone; there are a number of other cases waiting upon its decision, we permit it to go forward. We direct that this matter be listed for 1 day to be heard in Category C, skeleton arguments to be furnished not less than 14 days before the hearing.