United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J McNALLY (of Counsel) Instructed By: Messrs Caporn Campbell 5 Brighton Road Surbiton Surrey KT6 5NU
For the Respondent	MR F FOREMAN Instructed By: Hallbridge Consulting Ltd Peper Mews Court 284 High Street Dorking Surrey RH4 1QT


 


JUDGE PETER CLARK:

1. This is an appeal by Mr Newman, the Applicant before the London (South) Employment Tribunal, against that Tribunal's decision, promulgated with extended reasons on 20 December 2000, dismissing her complaint of unfair dismissal. There is now no appeal against the Tribunal's further finding that her claim of wrongful dismissal failed.

The pleaded issues

2. The starting point in this case must be the principal contentions advanced in the parties' forms IT1 and IT3. In her Originating Application the Appellant contended that she was continuously employed by the Respondent, Hawkshill Investment Limited, following a relevant transfer on 17 December 1999 from its predecessor, Thistle Estates Ltd, from the 16 August 1994 until her dismissal by the Respondent on 31 March 2000. She alleged that such dismissal was both statutorily unfair and wrongful at common law.
3. By its notice of appearance the Respondent denied that the Appellant had been dismissed and contended that her employment with the Respondent began on 31 February 2000 and ended on 31 March that year. In their supplemental grounds for resistance the Respondent contended that no relevant transfer had taken place between Thistle and the Respondent on 17 December 1999; that the Appellant was on maternity leave from about mid-October 1999 until 1 February 2000 and that during that period she was employed by Thistle; that in January 2000 she resigned from her employment, which resignation was accepted by the Respondent and that it was agreed that she would be employed by the Respondent for a period of 2 months from 1 February to 31 March.

The issues identified by the Tribunal

4. At paragraph 5 of their reasons the Tribunal formulated the issues for determination in this way:

"whether the Applicant had been dismissed from her job as office manager/receptionist, or whether she had resigned; if she had whether the dismissal was fair or unfair and/or whether the Respondent had breached a term or terms of her contract of employment."

The facts

5. The Tribunal found the following facts: The Appellant was employed as office manager/receptionist by Thistle, a company which operated furnished and staffed business accommodation from the Old Church, Quicks Road, Wimbledon, for a number of years. We take that to be a reference to the start date alleged by the Appellant with Thistle in August 1994.
6. The business was bought by the Respondent in December 1999. At that time the Appellant was on maternity leave. During the week commencing 3 January 2000 the Appellant came into the Old Church office and saw Mr Body, a director of the Respondent. She tendered her resignation on the grounds that it would not be economic to return to work and engage a child minder on the wages she had been receiving. Although disputed, the Tribunal found as a fact that Mr Body accepted her resignation.
7. Losing the Appellant at that stage would have caused difficulty to the Respondent; thus it was agreed that she would work under a fixed term contract from 1 February to 31 March 2000. The terms of that agreement, the Tribunal found, were contained in a letter to the Appellant from Richard Morgan, the Respondent's Finance Director, dated 17 February 2000. In that letter he said:

"I understand that you will now be with the company for an initial two-month part-time contract which may be renewed thereafter."

8. The contract was not renewed, the Appellant's employment terminating on 31 March 2000. In April 2000 Mr Body recruited a receptionist through a recruitment agency.

The Tribunal decision

9. The Tribunal reached the following conclusions:

(1) the Appellant resigned from her job of Office Manager/Receptionist on or about 7 January 2000; that resignation was accepted by Mr Body.

(2) The Appellant and Respondent agreed a fixed-term contract commencing on 1 February and ending on 31 March 2000.

(3) The Appellant was continuously employed by the Respondent under a fixed term contract and her employment expired at the end of the fixed period.

(4) The Appellant was not unfairly dismissed and the Respondent's did not breach her contract of employment.

The Appeal

10. Following a preliminary hearing held on 26 July 2001 before a differently constituted division on which I sat, the appeal was permitted to proceed to this full hearing on limited grounds, namely, was the Appellant dismissed by the Respondent on 31 March 2000 by reason of the expiry of a fixed term contract, see Employment Rights Act (ERA) section 95(1)(b); if no, was that dismissal unfair in the absence of a potentially fair reason for dismissal having been advanced by the Respondent; did the Tribunal give adequate reasons for their conclusion that the Appellant was not unfairly dismissed?
11. At paragraph 9 of my judgment I identified a number of potential questions arguably not expressly dealt with by the Tribunal. One of those questions was whether the Tribunal had found that the Appellant was continuously employed through to the 31 March, starting in 1994.
12. In the light of Mr Foreman's argument in support of the Tribunal's conclusion, it is useful to start with the question of continuity. Although an issue was raised in the Respondent's notice of appearance as to whether or not a relevant transfer took place in December 1999, it is accepted before us and was conceded by Mr Body below, that there was a relevant transfer from Thistle to the Respondent on 17 December 1999.
13. At that time the Appellant was on maternity leave. However, her contractual relationship with Thistle was maintained immediately before the transfer and thereafter continued with the Respondent as a result of amendments to the ERA effected by the Employment Relations Act 1999 and the Maternity and Paternity Leave Regulations 1999. See ERA section 71(1) and 73(1) as amended and regulations 17 of the Regulations. Those provisions came into force on 15 December 1999.
14. The real question is whether the Tribunal found, as Mr Foreman submits they must have done, that there was a break in continuity between 7 January, when, on their findings, Mr Body accepted the Appellant's resignation and 1 February, when the 2 month fixed term contract commenced.
15. The short answer is that we simply cannot tell from the Tribunal's reasons. It is, perhaps, significant that continuity is not identified by the Tribunal as an issue which they had to determine at paragraph 5 of their reasons. Plainly it was. Nor is it clear from their conclusion section what finding, if any, they made. Mr Foreman submits that it is clear from paragraphs 7 – 9 of the reasons that the Tribunal were finding that a break in continuity occurred. However, the point is simply not addressed in those paragraphs. In particular, there is no finding as to then the resignation was to take effect. Was it with immediate effect or was it to take effect at the end of the maternity leave? If the latter, then there was no break in continuity. If the former, a number of questions arise, bearing in mind the presumption of continuity under section 210(5) ERA. The principal question is whether, on the facts, the parties entered into an arrangement within the meaning of section 212(3)(c) whereby, during her absence from work, she was to be regarded as continuing in the employment for any purpose. Mr McNally tells us that there was evidence that the Appellant attended the Respondent's offices for work between 7 January and 1 February. If so, was she "absent from work," or was she regarded as continuing in the employment for the purpose of helping out from time to time. Did the Respondent pay her statutory maternity pay for the whole of January? If so, did that bring her absence within section 212(3)(c)? What is the effect of the parties' agreement for a fixed term contract commencing on 1 February? All of these are matters apparently not considered by the Tribunal.
16. Conversely, Mr McNally points to the Tribunal's conclusion in paragraph 10 of their reasons, that the Appellant was continuously employed by the Respondent under a fixed term contract. Does that mean continuous throughout the 2 month period or continuous with her earlier employment going back to 1994? It is not clear to us.


17. The next point is the question of dismissal. Although the Tribunal found that the Appellant resigned in January, what was the effect in law of the expiry of the fixed term contract on 31 March without renewal? Did that constitute a dismissal under section 95(1)(b) ERA? Or was it a consensual termination, see Thames Television Ltd v. Wallis (1979) IRLR 136? The Tribunal appear to have made no finding on this question.

17. For these reasons we have concluded that this is a case in which the parties do not know from the Tribunal's reasons why they have won or lost and we, as an appellate court, cannot tell from their reasoning why the Tribunal have reached the conclusion that the Appellant was unfairly dismissed. In these circumstances we must allow the appeal and remit the case to a fresh Employment Tribunal for rehearing.
18. A further point arises on the form of that rehearing. It is clear that below the Respondent took the point (a) that the Appellant was not dismissed and (b) that she did not have the necessary continuous employment to qualify for unfair dismissal protection under section 108(1) ERA. What we are not persuaded of by Mr Foreman is that the Respondent raised an alternative plea; that if the Appellant was dismissed on 31 March and if she had the necessary qualifying service, then the Respondent had a potentially fair reason for dismissal and that dismissal was fair under section 98(4) ERA.
19. We have taken into account the guidance of the Court of Appeal in Aparu v. Iceland Frozen Foods Plc (no.2) (2000) ICR 341, approving the judgment of Mr Justice Morison in Church v. West Lancashire NHS Trust (No 2) 1999 ICR 586 (see Per in Lord Justice Mance 352(C)) and particularly Lord Justice Peter Gibson (353D) in Aparu. Based on the principle that a party must bring forward the whole of his case at the substantive hearing, we consider that it would be wrong to allow the Respondent to raise an argument as to a potentially fair reason for dismissal and its reasonableness at the remitted hearing when no such case was advanced before the original Tribunal.
20. Accordingly, we shall direct, for the avoidance of doubt, that at the remitted hearing the following issues only arise:

(1) was the Appellant dismissed by the Respondent within the meaning of section 95 ERA on 31 March 2000?

(2) If so, had she at that date completed the necessary qualifying period of continuous service for the purpose of section 108(1)?

(3) If so, then the dismissal was unfair

(4) In these circumstances, to what remedy is she entitled?