United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr Dai Rowlands, Representative 112 Cabul Close WARRINGTON WA2 7SE
For the Respondents	Mr I Meth, Representative Of- MENTOR 2 Stewart Drive Clarkston GLASGOW G76 7EZ


 


LORD JOHNSTON:

1. Between 1994 and March 2001, the appellant worked as an employee of the respondents at the Royal Highland Show. Her official title was an assistant to the livestock and competitions manager. Examples of how the employment was created can be found in R9 and R10, being letters passing between the parties. Shortly after she commenced her employment in March 2001, her employment was terminated by reason of the fact that it was anticipated that the show would not take place by reason of the outbreak of foot and mouth disease. She applied to the Employment Tribunal claiming unfair dismissal or, at least, a redundancy payment, alleging that she had in fact been continuously employed from 1994 to 2001 notwithstanding she had only worked approximately 4 months of each year. The Tribunal rejected that argument holding that she had not acquired sufficient continuity of service to qualify for either unfair dismissal claim or a redundancy payment. Against that decision, this appeal is brought.
2. The employer found certain aspects of the employment as a matter of fact and sets them out as follows:-

"The applicant, whose date of birth was 2 May 1958, had been employed by the respondents from time to time between April 1994 and 26 March 2001, with the initial job title of livestock assistant, and latterly with the title of livestock and competitions officer. She retained her P45 form throughout, and she was nominally retained on the respondents' pay roll with the same number throughout the whole period. She received invitations to the staff Christmas Party each year and also attended a planning meeting. She sometimes received tax rebates in the periods when she was not working. Most of the respondents' temporary employees returned to work in following years. There was no mutuality of obligation on each party for the period between July in one and February in the following year.

The Tribunal held that in each of the years in question, apart from the last one, the applicant had been employed by the respondents for a period of approximately 4 to 4½ months, but for the remaining months of each of the years in question, she had not been employed at all. During these remaining months, she worked as a self-employed person doing other business on her own account. She was not required by the respondents to come in for work during the non-employed months, and they were not obliged to offer her employment during these months. The reason for this was that the respondents, who ran the Royal Highland Show in Edinburgh, did not require most of their employees to work for a whole year at a time. Their need for employees in the applicant's category existed only for the period from about the end of February to some time in July. This was to prepare for their show, which took place in June, and also to deal with the administrative aftermath, once the show had concluded. Her job was to deal with applicants for taking part in horse and other animal competitions and thereafter dealing with the issue of prizes and the like after the show had been completed. While she did attend things like the Christmas Party in between periods of employment, this was not part of paid employment, and the Tribunal could attach no significance to that. The applicant did receive some payslips in the months when she was not working, but these were limited to the purpose of issuing her with tax rebates, due to the fact that she had been taxed while in employment and was entitled to these rebates for the months when she was not working for the respondents. The respondents also retained her P45 form from year to year, but this was simply a matter of convenience and the Tribunal did not find that it had any significance from a permanent employment point of view. The respondents had also issued documentation to the applicant in which her position was clearly defined as that of a temporary employee. On the last period of employment, she was issued with a letter dated 23 February 2001, offering her temporary employment in the show department as a livestock and competitions officer. The letter stated that the duration of the employment would be from the end of March approximately to July. Because of the outbreak of foot and mouth disease and the cancellation of the show for the year 2001, she did not in fact work for the whole of that period. At most her employment lasted no more than about a month when it was terminated on the grounds that there would be no work for her due to the cancellation of the show."

3. Against that background the decision of the Tribunal is as follows:-

"The Tribunal accepted the submission on behalf of the respondents and held that the applicant had insufficient service to qualify, either for an unfair dismissal claim or a redundancy payment claim. Where there were differences or a conflict in the evidence as between that of the applicant and that of the respondents, the Tribunal preferred the evidence of the respondents. For an unfair dismissal claim, she would have had to be employed for a minimum period of one year, and for a redundancy payment claim for a period of two years. The Tribunal held that in her final year she had been employed for no more than about a month. The Tribunal did not accept the argument for the applicant that she had continuous employment dating back to 1994. The Tribunal took the view that she was not a permanent employee and had in fact been employed on a series of temporary contracts for each individual year, amounting to approximately four months. There was no mutuality of obligation on each party for the period between July in one year and February in the following year, and so it could not be said that there was a continuing contract of employment during that period. The Tribunal felt that it was stretching the matter far too far to suggest that these periods of non-employment amount to a temporary cessation of work within the meaning of Section 212 (3)(b) of the Employment Rights Act 1996. Similarly, the Tribunal could not accept that these periods of non-employment amounted to some arrangement or custom amounting to continuing employment within the meaning of Section 212 (3)(c) of the Act. While it was true that in most cases these temporary employees did come back for work on a fairly regular basis year in year out, there was no continuing obligation to do so, and these periods were in no sense some kind of agreed leave. The cases cited on behalf of the applicant were clearly to be distinguished from the present circumstances, and the Tribunal could not accept that they were in any way binding. In the final analysis, therefore, the Tribunal held that there was no jurisdiction to hear either claim on the basis that there was insufficient period of service. The Tribunal felt, therefore, that it had no option but to dismiss the application."

4. Mr Rowlands, appearing for the appellant, based his argument on section 212 (3)(c) of the Employment Rights Act 1996 which is in the following terms:-

"… any week … during the whole or part of which the employee is-

(c) absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for any purpose."

5. Mr Rowlands' principal argument was that the Tribunal had misdirected themselves in applying the test they had applied inasmuch that they had combined the separate aspects of "arrangement" and "custom" into one single consideration. What they should have done, he submitted, was to determine that there was an arrangement within the meaning of the subsection whereby the employee, so-called, returned to work every year and, accordingly, was an employee governed by an arrangement which limited the period of actual employment to the relevant period in fact. However, he also submitted that during the rest of the year the employee was not under a contract of employment and was free to work elsewhere. He pointed to the various aspects surrounding the employment which the Tribunal had found as a matter of fact in relation to P45, pay slips, attendance at a planning meeting and a Christmas party. All of these, he submitted pointed to the appellant being employed for the full year.
6. Mr Meth, appearing for the respondents, submitted that, in essence, the Tribunal had applied the right test, there being no mutuality of obligation on the part of the two parties which regulated a continuing contract of employment when each period commenced in March of each year. He referred the Tribunal to Curr v Marks & Spencer Plc EAT/1284/00 (unreported) and the case referred therein, Booth v United States of America [1999] IRLR 16. Thus, he submitted, that the Tribunal had reached the correct decision.
7. It is important to recognise that section 212 is concerned with the existence of a contract of employment into which can be counted weeks not actually worked for the various reasons set out in the subsection. Mr Rowlands' assertion, accordingly, that there was no contract of employment during the periods when there was no actual work being carried out, runs in the teeth of the proper construction to be put upon the section as a whole. In our opinion, what the subsection is designed to do is to prevent an existing contract of employment being brought to an end in certain specific circumstances when work is not actually being carried out. It cannot apply if the contract has actually been terminated.
8. In this case, while there are the trappings of employment in relation to the ancillary matters to which we have referred, and also clearly an understanding between the parties that work would be resumed each year, we are entirely satisfied that during the periods when work was not being carried out there was no work to be carried out and, therefore, there could not be "absence from work". The physical delineation of the employment upon the evidence was the Highland Show and when, as one of the letters points out, "it was wrapped up", the employment, in our opinion, came to an end in each year. There was no formal arrangement as properly to be understood from the authorities whereby Miss Reed was guaranteed employment the following March which, in turn, she was bound to accept. This is the essential element of mutuality of obligation in a subsisting contract of employment where there are temporary cessations.
9. In these circumstances we consider the Tribunal reached the correct conclusion and it would be contrary to the evidence and the law in this case to have found that, in fact. Miss Reed had been continuously employed since 1994.
10. In these circumstances we affirm the decision of the Tribunal and the appeal is dismissed.