United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS A HADLEY (Solicitor) British Medical Association BMA House Tavistock Square London WC1H 9JP
For the Respondent	MR K McINERNEY (Legal Officer) Royal College of Nursing Raven house 81 Clarendon Road Leeds LS2 9PJ


 


RECORDER LANGSTAFF QC:

1. This appeal from the decision of an Employment Tribunal at Carlisle, extended reasons for which were promulgated on 3 October 2000, raises once again the question of the sufficiency and adequacy of a Tribunal's reasons for its decision. The issue which came before the Tribunal was a relatively simple and familiar one. It was whether or not the Applicant before the Tribunal, Mrs Hayes, had sufficient continuous employment in the service of the Appellant, Dr Mohammed to qualify for unfair dismissal.
2. The rival contentions were on behalf of Dr Mohammed that Mrs Hayes had begun working for him as a part-time Practice Nurse, with effect from 5 February 1999. If so she did not succeed in establishing 12 months continuous employment, because it was common ground that the effective date of the determination of her employment was 12 January 2000. Mrs Hayes on the other hand, gave evidence that she had started to work for Dr Mohammed on 8 January 1999. In that case she had sufficient service.
3. When matters came before the Tribunal, it became apparent that there was no single document which recorded the date from which continuous employment was to begin. There was, it appears, no written contract of employment covering at any rate January 1999, whatever may have been the position in respect thereafter.
4. The Tribunal initially gave reasons in summary form. When it expanded them to deal with the issues which had arisen in extended form, it said this in the material parts;

"The applicant claimed that she had started to work for the Respondent on 8 January 1999 on a casual basis. She claimed that in January 1999 she had worked on a total of 4 hours. The applicant said that she had agreed that her January wages could be added to those owing to her in February and paid in February. The applicant's husband confirmed that the applicant had worked in January and that his wife had told him of the arrangement concerning wages."

In its conclusions the Tribunal said at paragraph 5;

"The Tribunal believed the evidence of the applicant and her husband that she commenced work in January 1999."

There then followed what might appear to be a non-sequitur:

"The Tribunal were not satisfied that the breakdown of the hours which the respondent claimed the applicant worked in February 1999 was accurate. There were no records produced to verify the breakdown and the evidence adduced by the respondent conflicted with the record produced."

5. The law is set out in the Employment Right Act 1996 at section 108, that provides that section 94 (that is, the right to complain of unfair dismissal):

"does not apply to a dismissal of an employee unless he has been continuously employed for a period of not less than [one year] ending with the effective date of termination."

That begs the question, what is continuous employment? That is dealt with in sections 210, 211 and 212 in particular, in chapter 1 of Part XIV of the same Act. Section 210 provides that;

"In computing an employee's period of continuous employment for the purposes of any provision of this Act, (We interpose to say that obviously includes section 108) any question-

(a) whether the employee's employment is of a kind counting towards a period of continuous employment, or

(b) whether periods (consecutive or otherwise) are to be treated as forming a single period of continuous employment

shall be determined week by week."

Subsection 5 provides that;

"A person's employment during any period shall, unless the contrary is shown, be presumed to have been continuous."

Section 212, subsection 1 provides;

"Any week during the whole or part of which an employee's relations with his employer are governed by a contract of employment counts in computing the employee's period of employment."

6. Before the Tribunal, Dr Mohammed gave evidence as did witnesses on his behalf. He produced a volume of written material to support his contention that Mrs Hayes did not begin to work for him under a contract of employment as envisaged by section 212 until 5 February 1999. The Tribunal in its decision does not expressly deal with any of that evidence.
7. When one looks at the way in which the Tribunal resolved the issues of fact before it, one looks to see the statutory criteria by which the Tribunal evaluated those facts. They are missing. The Tribunal does not set out any of the provisions which occur in chapter 1 of part XIV of the 1996 Act, nor for that matter do they make express reference to section 108. There is a possibility from the wording which the Tribunal has used that the focus of its decision was on when it was that Mrs Hayes began to work. Such a focus would not pay sufficient regard to section 212 which requires the focus to be on whether or not any work which is done, is done under a contract of employment, and indeed leaves open the possibility that no work at all could be done. It merely requires that the employee's relations with the employer are governed by a contract of employment.
8. The difficulty that we have with the decision of the Tribunal is that in the opening sentence of paragraph 3 which we have quoted in full above, it appears that the Applicant was claiming that she started work on a casual basis. Since it was common ground that the basis from February onward was a permanent basis, albeit part-time, it would appear that the Tribunal were there referring to some other contractual arrangement than that which applied from 5 February. If they were not but were referring to the self-same contractual arrangement, we would have expected it to be spelt out. It looks as though the words there used attributed to the Applicant in evidence, are used to distinguish her employment in January from that which followed.
9. Mr McInerney, who appeared for the Respondent, Mrs Hayes, before us, has argued that nonetheless the Tribunal was entitled to conclude that it believed the evidence of the Applicant that she commenced work in January 1999 and was entitled to evaluate that work as having been done under the contractual arrangements which also operated beyond February. The difficulty with that submission is that it is common ground that the only evidence for the basis on which work was done in January 1999 was the Applicant's own evidence. If she was saying that the work was then done on a casual basis, there would be no evidential material upon the basis of which the Tribunal could conclude otherwise. The Tribunal could not, on that evidence, have come to the conclusion that she was working on some permanent contractual basis, such that week by week her relations with Dr Mohammed were governed by a contract of employment.
10. So one returns to ask what the parties would understand as to why they won and why they lost. Here the Appellant, Dr Mohammed, might be forgiven for not knowing what the Tribunal had in mind as the contractual basis, if there was one at all, under which Mrs Hayes worked in January. Since she worked only 4 hours, which is the express finding of the Tribunal, one would need to know what the Tribunal held as to when those 4 hours were worked, under what form of contract and whether, if there was any gap of a week or more between one period of work and the next, there was in the interim a contract of employment governing her relations with Dr Mohammed.
11. In short, we have concluded that, although the Tribunal had material before it from which it might have reached a conclusion that Mrs Hayes worked as an employee from 8 January and that during January her relations with her employer were governed by a contract of employment which applied week by week, we cannot be satisfied that that must have been what this Tribunal were in fact concluding. In short, the reasons which they have given do not appear to us sufficiently to tell the parties why they have won or why they have lost.
12. A further objection is that there is no analysis made week by week as would appear to be required by section 210. Mr McInerny, though accepting that that may appear to be the case, argues that there was here a recognition that during the month of January the statutory tests might have been fulfilled. He invites us to conclude, because the Tribunal's focus was on the month of January, that nonetheless the analysis was done on a week by week basis. We can see no proper reason to evaluate on a monthly basis that which is required by statued to be analysed on a weekly basis and we have no alternative but to reject that submission.
13. Mr McInerny accepts, as he has to, that there is no reference to much of the evidential material that was before the Tribunal with a view to explain what the Tribunal made of it. Had the wording that the Tribunal used been less Delphic, this might have been a factor which we felt was sufficiently dealt with by terse findings of fact on a short issue. However, it takes on a significance which is rather greater given the lack of clarity which was apparent to this Tribunal on the preliminary hearing of this appeal and is apparent to us too.
14. Finally, we think that the first sentence of the conclusion, focussing as it does on when it was that the Applicant commenced work, does not explicitly recognise that the statutory requirement is to answer the question whether in that week the employee's relations with her employer were governed by a contract of employment. Indeed by definition one cannot be an employee unless employed under a contract of employment. So simply to ask whether one person worked for another does not sufficiently answer the question whether it the date on which she did so is the start of a period of continuous employment.
15. Because of our conclusions on this part of the appeal, we have found it unnecessary to consider the other matters which are raised in the amended notice of appeal. Thus, we do not make any decision as to whether or not the Employment Tribunal erred in law or arrived at a perverse conclusion in finding that the Respondents evidence had been corroborated in any material way by her husband. We do not consider the significance that should have been made of the contemporaneous documentation referred to in the notice of appeal, nor do we consider the issues of natural justice posed by ground 4 of the Notice of Appeal.
16. In each of those cases, the same remedy and order would follow, had those appeals succeeded and that is remission to a Tribunal for a fresh decision to be made in respect of the question of continuity of employment. We have been asked whether remission might on the grounds of the economy of effort be made to the same Tribunal. We think it is right that the remission should be to a freshly constituted Tribunal, not least because economy of effort applies best when there is but a short lapse of time between one decision and a fresh decision, such that the facts and matters may truly be said to remain in the mind of the Tribunal. Here for reasons which are not strictly under the control of the Tribunal, there were possible problems arising from the way in which hearings of the Tribunal were notified to Dr Mohammed, and letters written by those representing Mrs Hayes from which it might be thought that the previous Tribunal had heard submissions from one party in the absence of another. They have understandably resulted in Dr Mohammed preferring a fresh Tribunal. We are prepared to accept his preference.
17. We should say that in reaching the conclusion we have, we make no criticism of the Tribunal, save that implicit in finding that the reasons expressed are insufficient and inadequate to explain their reasoning, but we think that in general it is desirable that there should be remission to a freshly constituted Tribunal.
18. That Tribunal will no doubt wish to approach the issues in the light of section 210, 211 and 212 of the 1996 Act, determining all the evidence which either party may wish to bring before it in the light of those provisions in particular. We anticipate that both parties may wish to amplify the evidence which was available on the previous occasion with a view to ensuring that the freshly constituted Tribunal comes to the right conclusion. Whether it is that Mrs Hayes enjoyed the benefit of a contract, even though she did no or little work under it from the beginning of January, commencing full time duties under that same contract in February, or whether it is that she did not begin work until February, or whether it is that she worked the odd hour in January, either in a way sufficient to constitute continuity of employment or not, is not for us but for them to determine.
19. Accordingly this appeal will be allowed with a direction for remission as indicated.