Corkhill v North Sea Ferries [1992] UKEAT 275_91_1011

EAT
Corkhill v North Sea Ferries
[1992] UKEAT 275_91_1011 · 1992-11-10

JUDGE J HULL:

In this case Mr Corkhill made a complaint to the Industrial Tribunal sitting at Hull which heard a preliminary point on 26 February 1991. He complained that he had been unfairly dismissed by the respondents, North Sea Ferries. He had been employed from time to time since 1984 by an associated company of North Sea Ferries operating from Portsmouth. He was employed as second officer, one of three on board the ferry and was responsible to the captain for navigation of the vessel, among other duties. There were three second officers and they would each work part of the time, covering between them the full twenty four hour period.The periods of his employment are of some interest. He started with P & O Ferries on 24 June 1984 and was employed with them at first for a period of less than 3 months and then there was a gap when he took other employment for 8 months. He then returned to P & O Ferries and was employed by them for something like 19 months, there was then a gap of about 2 months, he came back for 10 months, there was a gap of 3 weeks, then after another gap he was employed by them for 10 months and after another gap he was employed for 3 weeks until the 15 March 1989. That was the period from 1984 onwards during which he spent the majority of his working life with P & O.The reason that P & O required his services on this non full-time basis was that the service operated from Portsmouth at that time was seasonal. During the winter there might have been only two ferries running and during the summer there would be four or five which meant that extra officers were required and Mr Corkhill would have been very welcome. One would infer from his re-employment that he was a trusted and well-liked man.In March 1989 there was apparently a disagreement between Mr Corkhill and the management of P & O that arose out of manning rotas. Mr Corkhill thought that the method of work proposed was unsafe and he complained about that and it led to his resignation.A gentleman who was senior in the management of both P & O Ferries and North Sea Ferries told Mr Corkhill, within a very few days, that there would be work available with North Sea Ferries who operated from Hull. The reason that they needed officers on a temporary basis was because they operated two ferries throughout the year and their officers all required leave from time to time and, of course, were sick from time to time. Mr Corkhill was employed by them within 5 days of his leaving P & O. The employment here was also seasonal as the permanent officers liked to take their holidays during the spring, summer and autumn.From March 1989 Mr Corkhill was employed as second officer on ferries operating from Hull and at the end of December 1989 he signed off having been paid his pay for January, February and March. He would have been entitled, apparently, to 47 days pay for leave but we have not gone into the details of that. When he made this application the employers in their answer (the notice of appearance) said that he had been employed from 20 March 1989 to 31 March 1990. That they said later was a mistake and the Tribunal accepted that it was a mistake; made possibly because of the confusion over his pay. They also told the Tribunal - and it was accepted - that they had paid Mr Corkhill for longer than he was entitled to and that too was a mistake. The money had been written off.According to Mr Corkhill he expected to be employed again very shortly by North Sea Ferries and, indeed, he was. He was approached and asked whether he would like to work for them and he worked for them from, first of all it was said 9 April 1990, but then that was amended to 19 April 1990. He says that there was a deliberate intention not to take him on until 9 April and thus to leave a gap of 9 days in his employment. He worked until 26 September 1990 when he was dismissed, at any rate his case is that he was dismissed on that date and he claims that that dismissal was unfair.A preliminary point was taken before the Industrial Tribunal that his employment with the respondents had not been continuous for two years as required before a complaint of unfair dismissal can be entertained. It was admitted that the employment with P & O Ferries was with an associated company and accordingly, if matters otherwise showed continuous employment, then all would be well from Mr Corkhill's point of view; but it was said that there had not been continuous employment.To understand this point, one must look at the Employment Protection (Consolidation) Act 1978 which provides rules for the computation of the period of employment under Section 151. It is provided that:[(1) References in any provision of this Act to a period of continuous employment are, except where provision is expressly made to the contrary, to a period computed in accordance with the provisions of this section and Schedule 13;"There are other references to Schedule 13. The Schedule deals with all sorts of situations in which a period may or may not count for the purpose of computation of a period of employment and in paragraph 1. (3) it is provided:
"(3) A person's employment during any period shall, unless the contrary is shown, be presumed to have been continuous."
Given that presumption the Schedule goes on to deal with the topic of employment where there is a contract and where the contract continues although hours of employment may be reduced and deals with that situation. In paragraph 9 periods where there is no contract of employment are dealt with. Para 9 provides in the material parts:
"9 (1) If in any week the employee is, for the whole or part of the week- (a) (b)absent from work on account of a temporary cessation of work, (c) (d)
that week shall, notwithstanding that it does not fall under paragraph 3, 4 or 5, count as a period of employment."Therefore, a person whose contract is not in operation may be able to count weeks between periods of employment if he is absent from work on a temporary cessation of work. As has been pointed out the word "work" is there used within a few words in two completely different senses because absence from work denotes the workplace and the temporary cessation of work means work for that particular employee.It was pointed out, on behalf of the employers, to the Tribunal that there was a period from December 1989 until 19 April 1990 when Mr Corkhill was not physically at work on any of the vessels of the company and therefore the Tribunal proceeded to try this question which was raised by North Sea Ferries as a preliminary point.The decision starts at page 4 of our bundle. After setting out the history of the matter and recording that it was accepted that P&O and North Sea Ferries were associated employers the Tribunal set out the history of the employment, the actual days; they also refer to the statutory provisions to which I have referred and they go on at paragraph 6:
"From what we have found as regards the applicant's period of employment, it is clear that there is a period prior to 19 April 1990 during which he was not employed within paragraph 3 of Schedule 13 of the Act. He is a merchant seaman and the relevant authorities clearly show that his employment as such terminated on the date on which he was paid off, notwithstanding that he had a period of leave entitlement to follow. There was therefore on that basis a period from 28 December 1989 up to 19 April 1990 when he was not employed so far as paragraph 3 is concerned.
The question arises whether the weeks during that break can nevertheless count in computing the period of employment. Clearly the period from the termination of employment up to the re-employment of the applicant in April 1990 was not one in which the relations of the applicant with the respondent were governed by a contract of employment. Only paragraph 9(1)(b) and (c) of the Schedule could possibly assist him and on the evidence that we have heard we find that whatever might have been the position as regards the employment of P&O, that employment has now ceased and only the subsequent employment by the respondent is relevant here. This new employment involved an entirely new working pattern if indeed there was truly now any pattern at all and any pattern or work record established under the old employment could not now be of any assistance in deciding whether or not any cessation of work was temporary or otherwise. The cessation of work on the applicant being paid off on 28 December 1989 lasted for some 3 months and 18 days after a period of employment of some 9 months and was followed by some 5 months of employment. We would regard this break as too substantial to be described as temporary when compared with the periods of actual work. Moreover this is no evidence of any agreement or custom and the applicant is not to be regarded as continuing in the employment of the respondent for any purpose whatsoever. The fact was that in this particular employment the applicant and indeed any other seasonal/relief officer was taken on only to provide against a specific need which had happened on a unique occasion and until such a need arose again there really was no concrete expectation of his ever being employed by the respondent in the future."That is how they approached the problem and they held as a result that when he was absent between December 1989 and April 1990, he was not absent from work on account of a temporary cessation of work within para 9 of the 13th Schedule to the Act and accordingly he had not been continuously employed for 2 years so as to entitle the Tribunal to embark on hearing his complaint of unfair dismissal.We have been referred most helpfully to several authorities. FITZGERALD v HALL, RUSSELL & CO LTD [1970] AC 984 was a case in which a welder had been employed by shipbuilders from time to time and of course the facts are quite different from the facts of this case. We refer to it only to see what statements of principle were made by their Lordships. At page 996 Lord Morris of Borth-y-Gest said:
"In determining whether a cessation of work has been temporary the guidance given by Lord Parker C.J. in Hunter v Smith's Dock Co Ltd should, in my view, be followed. If in reference to the time when a cessation of work begins there is evidence showing that both the employer and the employee expected and anticipated that the cessation would only be for a relatively short time, that would be very relevant evidence in considering at a later time whether there had been a temporary cessation of work. But the absence of any such evidence would certainly not be decisive. It is to be remembered that there must be a looking back process and that it is at some time subsequent to re-engagement and in reference to a past period of absence from work that the question is raised whether the employee was absent from work on account of a temporary cessation of work. All relevant evidence and all relevant factors will have to be taken into account. Questions of fact will arise. The duration of one period relative to or in relation to the antecedent and subsequent periods will be one relevant factor."
and Lord Upjohn said at page 1001 (B):
"No doubt in many cases a break in employment will prove fatal to a claim to throw the period of continuous employment back to the period of his earlier engagement; thus, if he gave notice himself for his own reasons, or was dismissed because he was unsatisfactory, it would no doubt be impossible for him to show that his employment was continuous from the earlier date."
and at page 1003 (E) he said:
"So the question - Was the cessation temporary? - in most cases cannot be answered as at the time of dismissal. The First Division applied the test stated in Singh v Patterson [this was a Scottish case] where the question was whether the residence of an individual in a particular country was temporary; it was held that the true opposite of "temporary" was not "permanent" but "indefinite" or "unlimited." With all respect, that test can have no relevance here for in most cases when the employee is dismissed his dismissal at that time must be described as indefinite or unlimited. But counsel on both sides agree that, as in every case where this problem arises there will have been a re-engagement, you must look at the original dismissal with hindsight, that is to say, with knowledge of all that has happened since the original dismissal until the second dismissal, and then decide whether in all the circumstances of the case the original dismissal can properly be described as due to a temporary cessation of work."
That was the guidance; those are the statements of principle relied on in that case.In FLACK v KODAK LTD (C.A.) [1986] ICR 775 the headnote reads:
"The employees had each been employed according to seasonal needs on an intermittent basis over periods varying from 3 to 11 years until finally dismissed by the employers, whereupon they applied for redundancy payments.
The holding by the Court of Appeal was:
"..where an employee had worked intermittently over a period of years in an irregular pattern an industrial tribunal ought to have regard to all the circumstances over the whole period of employment to ascertain whether the breaks in the two year period prior to the dismissal were temporary and they should not confine themselves to looking only at each such break in relation to the adjoining periods of employment; that, accordingly, the industrial tribunal had erred in law in adopting a purely mathematical approach ..."
At page 781

Lord Justice Woolf said:

"The word "temporary" in paragraph 9(1)(b) is not being used in the sense of something which is not permanent, since otherwise in every case where employment is resumed where there has been a dismissal on account of cessation of work, paragraph 9(1)(b) would apply. It is, as stated by Lord Diplock, being used in the sense of "lasting only for a relatively short time."

and he went on

"What is a short time in one employment is not necessarily a short time in another employment. In deciding what is relatively a short time in a particular employment, it is now clearly established that it is necessary to look at the period of dismissal with hindsight - looking backwards as to the circumstances from the date of the final dismissal. In doing this, the period of dismissal relative to the period of employment is of the greatest importance. However, it is the whole period of employment which is relevant. In the case of irregular employment, if the periods of employment either side of the dismissal are only looked at, a most misleading comparison could be drawn."
and then he gives examples of that.Sir John Donaldson M.R. said at page 790:
"I agree with the appeal tribunal that the industrial tribunal should be invited to reconsider their decisions in the light of the judgement of this court and of the House of Lords in Fitzgerald's case rather than of Ford's case. In doing so, it will bear in mind that whilst the only absences from work on account of a cessation of work which are relevant to the issue of whether each employee was qualified for some redundancy payment are those which occurred during the two years immediately prior to final dismissal, the characterisation of these cessations as being temporary or otherwise may be affected by the whole history of the employment. A much longer gap in the course of a long period of work extending over many years might well be considered temporary whereas if the same gap occurred in the course of a shorter period, it would not."
In view of our decision in this case the less we say about the facts in a sense the better, but I must, to explain our view, point out certain matters.This was a case where these two associated companies had different reasons for requiring the services of a temporary officer such as Mr Corkhill but nonetheless those reasons led apparently to a similar result, namely a requirement, particularly in the spring, summer and autumn of the year, for long service by temporary officers called in, who might remain for the whole year but at any rate for perhaps 10 or 11 months of the year. That appears to have been the position with regard to P&O and possibly may be the position with regard to North Sea Ferries.I have already said what the dates of employment of Mr Corkhill were and it is impossible to say that the history of employment with P&O is, on the face of it and immediately, wholly irrelevant to the question whether the absence between December and April was due to a temporary cessation of work. It may on analysis be shown to be unhelpful but that requires the tribunal which is trying the question to have regard to it and see whether there are matters there which help or not; and it appears to us that this tribunal have, in deciding this question, deliberately put out of their minds the facts which related to the period of employment with P&O and concentrated exclusively on the period of employment with North Sea Ferries. It appears to us that that is a decision taken on principle. I have read the passages where the tribunal directed themselves that any pattern or work record established under the old employment could not now be of any assistance. It seems to us, with respect, that that is wrong.The facts that Mr Corkhill was well liked and was regularly re-employed by P&O would on the face of it be a highly material circumstance, the way in which he had repeatedly been employed, and the way in which the intervals in his employment were treated with P&O, would on the face of it throw a great deal of light on what happened when he ceased to be employed by P&O, having resigned from that company, but was forthwith approached to join North Sea Ferries at the instance of a gentleman who held high office in both companies. We think therefore that it appears from this written decision of the Industrial Tribunal that they deliberately put out of their minds a matter which they should have considered carefully in order to decide whether it did or did not help them in the question which they had to consider.If we are right about that, and it certainly appears from the plain wording of the decision that that is the position, then it is clear that the Tribunal approached their task in an unduly blinkered fashion and left out of their consideration what they might well have found, if they had looked into it, to be an important set of facts which might assist them. It is of course for the Tribunal to say on this question (which is basically one of fact) what assists them and what does not. If, however, as a matter of law they directed their minds away from a material matter without giving any satisfactory reasons for doing so then we think that they have on the face of it gone wrong in law.It may very well be that the fact that Mr Corkhill was unrepresented and raised, as one can see from the bundles of documents which are before us, a large number of matters ,which on the face of them may not have assisted the Tribunal in any way, is partly or wholly responsible for this error of approach. However that may be we are not satisfied that this Tribunal approached their difficult task with all the material which they should have had in their minds, and they made the error which I have described. Mr Corkhill was second officer; he was performing precisely similar duties on each vessel and it was for a reason which could be said to be very similar though arising from a different origin, namely a shortage of full-time employed officers.There are other matters which one could refer to of course, a great many matters pointing one way or the other, but if we went into those I think we should be going beyond our function which is merely to entertain appeals on points of law. It is entirely for the Tribunal, directing itself correctly, to say whether there has been continuity of employment here and to decide exactly what matters help them and what do not.We think this case should go back to a differently constituted tribunal so that they can decide, starting afresh and considering all material matters, whether there is or is not continuity of employment established in this case. To that extent we allow this appeal and remit the matter to the Industrial Tribunal differently constituted for it to decide this preliminary point and of course depending on the decision there, if that point is decided in favour of Mr Corkhill, to go on to consider the complaint which is made by him.