United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PETER DOUGHTY (of Counsel) Instructed By: Messrs Philip Ashworth & Co Solicitors 121 The Mount York YO24 1DU
For the Respondents	MR NIGEL MILLS (Solicitor) Messrs Fynn & Partners Solicitors 70 Richmond Hill Bournemouth Dorset BH2 6JA


 


JUDGE D PUGSLEY:

1. In essence this is a case where there is no great conflict of facts. The issue can be summed up in this way. If 'A' is employed by 'X' and he accepts an offer of employment by 'Y', is his continuity preserved if they are not associated employers at the time when he accepts the offer of a new job, but they are by the time he actually commences the new job? The Tribunal found there was continuity of service in these circumstances.
2. There is no issue of fact here in the chronology helpfully drawn up by Counsel for the Appellant. Mr Swann was employed by Sotel Ltd from 4 May 1999 until 30 September 2000. He entered into a contract of employment with the Appellant on 11 September 2000. On 11 September 2000 the Appellant was not an associated employee of Sotel Ltd. Steven Swann carried out a limited amount of work for the Appellant prior to 1 October. He commenced working for the Appellant on 1 October. At all times up to 30 September Mr Swann was paid by Sotel Ltd. The Tribunal made the finding of fact that the amount of work done by Mr Swann for the Appellant prior to 1 October did not amount to starting work with the Appellant.
3. The Appellant argued that Steven Swann entered the Appellant's employment for the purposes of Section 218(6) of the Employment Rights Act 1996 on 11 September 2000 at a time when the Appellant was not an associated employer of Sotel Ltd. It is the Appellant's case that Steven Swann had not been continuously employed by the Appellant for a period of not less than one year ending with the effective date of termination and this period of employment with Sotel Ltd does not count of a period of employment with the Appellant. We have been referred to Section 218(6), which says:

"If an employee of an employer is taken into the employment of another employer who, at the time when the employee enters a second employer's employment, is an associated employer of the first employer –

(a) the employee's period of employment at that time counts as a period of employment with the second employer, and

(b) the change of employer does not break the continuity of the period of employment."

4. We have had a detailed analysis of the concepts of taking into employment and entering the second employer's employment. We have been taken back to the well known tautologous definitions, of "employment" and "employees" defined in Section 230, as an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and the definition of "employment" in relation to an employee, means employment under a contract of employment. We have been taken to Sarker v South Tees Acute Hospitals NHS Trust [1997] IRLR 328 as authority for the proposition that someone becomes an employer under the Employment Rights Act at the time the contract has been made, not when one actually attends work.
5. We have looked at the cases of The General of the Salvation Army v Dewsbury [1984] IRLR 22, in which the Employment Appeal Tribunal held that "starts work" what was a predecessor of the present provision, Section 151(3) means:

" ... 'an employee's period of continuous employment ... begins with the day on which he starts work', is intended to refer to the beginning of the employee's employment under the relevant contract of employment. ... it is not intended to be interpreted literally as referring to when the employee first undertook the duties of the employment."

That deals with the situation where the job runs or is expressed to run from 1 September, but 1 September is, say a weekend or a bank holiday.

6. We have been taken to the case of Macer v Abafast Ltd [1989] IRLR 137, which of course, is authority for the general proposition that one should be careful to act in such a way as to suggest and limit people's contract of continuity of service.
7. We have been impressed, as were the Tribunal below, by the submissions of Mr Doughty. We have found them extremely lucid, well argued, audacious but unconvincing. Quite simply, we just do not accept the interpretation put. We do not accept this interpretation because, apart from the fact that it would make a nonsense and turn on its head generally approved employment practice in the view of the industrial members here, we do not think it lies in our power to override the words of section 211:

"(1) An employee's period of continuous employment for the purposes of any provision of this Act –

(a) ... begins with the day on which the employee starts work, and

(b) ends with the day by reference to which the length of the employee's period of continuous employment is to be ascertained for the purposes of the provision."

8. That, if I may say so, is common sense and because it is common sense does not mean it has to be disregarded. There are all sorts of situations which we have thought of in which 'A' is working out the period of his contract with 'X'. There is still a contract between the two of them. The fact that 'A' is going to a new job to start the day after he leaves the old one, does not mean that until the expiry of his contract, he is an employee of the "New" employer for the purposes of continuity of service. Sarker v South Tees Acute Hospitals NHS Trust turns on a factual situation very different to this, namely the one where a person has concluded a contract and thereafter one party withdraws. As Keene J said, at paragraph 13:

"The mere fact that the duties would only be performed on a date subsequent to this contract having been entered into cannot take it outside the concept of a contract of employment. If it were otherwise, a very large number of contracts would not be contracts of employment, even though they were entered into perhaps only one day before the individual began actually performing his or her duties for the employer."

Secondly, it should be noted that Keene J says this, at paragraphs 23 and 24:

"23 In the Salvation Army case, supra, there was a contract made on or about 1 April 1982, under which the teaching post offered to and accepted by the respondent would commence on 1 May 1982. 1 May was a Saturday and 3 May was a bank holiday, so that the respondent only undertook her duties as from Tuesday 4 May. This became highly significant for the calculation of the period of continuous employment. The issue was whether she had 'started work' on the Saturday or only on the Tuesday. The Employment Appeal Tribunal held that this referred to the Saturday, saying that:

'The phrase "starts work" ... is not intended to refer to the undertaking of the full-time duties of the employment: it is intended to refer to the beginning of the employee's employment under the relevant contract of employment'.

Implicit in that statement is the view that her employment began at the stipulated date when her duties were to commence.

24 However, it has to be borne in mind, first, that no party there was considering the situation as from the date when the contract of employment was entered into, and thus the Employment Appeal Tribunal was not asked to apply its mind to the relevance of that date; and secondly, the Employment Appeal Tribunal was dealing with the specific concept of the 'period of continuous employment' and its detailed definition in s.151(3). In effect, it was interpreting the words 'starts work'. That is a different task from the one which faces this appeal tribunal."

9. With very great respect, we agree with Keene J. He was engaged on a different task; he was not dealing with a question of continuity of employment and we can see no basis for overriding the clear statutory and common sense position that continuous employment begins with the date on which the employee starts work. The starts work under the terms of the contract can be, as was the position in the Salvation Army case, a day or so before the actual commencement of work if the start date is a bank holiday or weekend.
10. We have come to this view that, in our view, interesting though the arguments of the Appellant be, we do not think it is right to allow this appeal. We approve the reasoning of the Tribunal. We have reached the decision we have that we cannot, in this case, go beyond the words of Section 211, notwithstanding the beguiling way in which Counsel has sought to divert us along attractive, but in our view ultimately barren paths.
11. It is right to say that Mr Mills has put in a cross-appeal. We would not for a moment stigmatise it as being a makeweight, nor would we say that there is not merit perhaps in the argument that the Tribunal might have been rather skeletal in its decision, but Mr Mills does not seek to rely on that cross-appeal in the event of our dismissing the appeal and therefore, we deny ourselves the pleasure of hearing argument about that.
12. We ought to make it clear that Mr Mills has not pursued his point on contingent or conditional contracts and really the only issue that has been of the nature of Section 211 and the other statutory provisions.
13. Quite simply we do not consider that the decisions of The General of the Salvation Army v Dewsbury or Sarker v South Tees Acute Hospitals NHS Trust apply to the factual situations of this case. We consider that the construction of Section 211 adopted by the Tribunal was correct and we dismiss this appeal.