Lilian Middleton Antique Dolls Ltd v Whitehead [1992] UKEAT 732_92_3011

EAT
Lilian Middleton Antique Dolls Ltd v Whitehead
[1992] UKEAT 732_92_3011 · 1992-11-30
MR JUSTICE TUCKER: This is an Appeal from a decision of the Industrial Tribunal held at Bristol on 13 July of this year whereby the Tribunal unanimously decided that the Tribunal had jurisdiction to hear and decide upon the Applicant's claim for a redundancy payment and they adjourned consideration of that matter to a date to be fixed. The Tribunal had before it a preliminary issue as to whether or not the Applicant who was then before them, Mr Whitehead, had 2 years continuous service ending with the effective date of termination of his employment with the Respondent so as to entitle him to pursue his claim for a redundancy payment.The Applicant, who is the Respondent before us, first began work for the present Appellants in 1983 and he continued with them until August 1985. On that date he left and went to work somewhere else but he came back and was re-employed by the present Appellants on 1 April 1986. The Tribunal were satisfied that his absence between August 1985 and February 1986 had broken the continuity of his employment and they rightly concluded that the earliest date upon which the Respondent can seek to rely as the start of his period of continuous employment is 1 February 1986 but the Appellants contended that there had been a further break in the continuity of employment in these circumstances.The Respondent carried on with his work until the end of September of 1991. He then went away on holiday, as he was entitled to do. When he returned to work on the Monday morning following his holiday, he found that his working conditions had been changed in his absence and an argument arose about that. He very soon left the premises. According to the Appellants he left after only about 5 minutes. According to the Respondent it was a longer time than that. Which ever version is correct he certainly did not work that day to any effect and certainly not for a full working day. But tempers cooled, and towards the end of the week the Appellants were in touch with the Respondent. Further discussions ensued and he returned to their employment as everyone agrees, on the following Monday morning and as the Tribunal found at that time he was employed under a Contract of Employment which provided for a 5 day working week. Thereafter he continued without break until 20 March 1992 and it was then that he was informed that his services were no longer required and he was dismissed. It was that dismissal which gave rise to his claim for redundancy payment.The issue correctly identified by the Tribunal as one which they had to decide in this Preliminary Hearing which they held was whether the break in work in September and October 1991 was sufficient to break continuous employment. They correctly directed themselves as to the law which they identified as being governed by the Employment Protection (Consolidation) Act 1978 and in particular they had to consider the detailed provisions of Schedule 13 of that Act.By paragraph 1(3) of that Schedule as amended by the Employment Act 1982, there was a presumption that employment was continuous unless the contrary is shown. The old paragraph 2 had been amended and paragraph 1(1), (2) and (3) substituted for it. The Tribunal then went on to consider the effect of paragraph 4 of Schedule 13 which is in these terms:
"Any week during the whole or part of which the employee's relations with the employer are governed by a contract of employment which normally involves employment for sixteen hours or more weekly shall count in computing a period of employment."
Having correctly directed themselves as to the law the Tribunal then went on to find these facts as they set out in paragraph 5 of their reasons:
"The Monday that the applicant came in to work after his holiday, it seems to us, is part of a week. He left later that day but he began work at the beginning of the following week. It does not seem to us, therefore, that there was a complete week in which there was no contract of employment. That week in which he was absent counts in assessing continuous employment because he worked, or was available for work, for part of it, namely that part of the Monday which elapsed before the row, after which he left. We are therefore satisfied that the applicant has continuous service commencing on 1 February 1986 and concluding upon the effective date of termination of his employment."
Now the issue before the Tribunal as it seems to us was - whether or not the Respondent did work on that Monday when the argument arose. There was no issue before the Tribunal as to whether or not at that time the Respondent was employed under a Contract of Employment. That was not a point which was taken before them. However, on appeal before us, what the Appellant seeks to argue is this.First of all in his Grounds of Appeal he says that the Tribunal misinterpreted the provisions of Schedule 13. He rightly refers in his Grounds of Appeal to paragraph 1(3) of that Schedule, that is to say the amended paragraph but as set out in the Notice, the Appellant seemed to wish to submit this:
"It does not seem reasonable to us that the five minutes he spent at his place of employment on MONDAY, 30th September, 1991, should count in assessing continuous employment. He did not work during that five minutes, neither was he available for work during that five minutes, in fact he never removed his street clothes or prepared himself for work during that five minutes."
and it is contended in that Notice of Appeal that the Tribunal's decision was misguided and the Appellants seek to submit that the Tribunal misread Schedule 13, paragraph 4.The Tribunal made their finding of fact on that as they were entitled to do and insofar as it was a matter of law they were correct in law, in our view, because that week commencing Monday 30 September 1991 was clearly a week during part of which the employee's relations with the employer were governed by a Contract of Employment. It is not necessary to prove that he did or did not work. His relations were governed by a Contract of Employment and as I have indicated, there was no issue before the Tribunal as to whether or not there was a Contract of Employment.But in what is headed the Pleading for the Appellant, which we would treat as a skeleton argument, the Appellant seeks to change his Grounds of Appeal as it seems to us. It is stated in paragraph 3:
"In paragraph 4 of the tribunal's decision they quote paragraph 4 of the act, as being suitable to cover the situation in this case. But that is not so. Paragraph 4 only allows a presumption of continuous employment where a contract of employment is in force. By the tribunal's own decision in paragraph 2, they area satisfied that the continuous employment of Mr Whitehead, was broken in 1985, and therefore his contract of employment, dated 23 July, 1993 was also broken.
When Mr Whitehead was re-employed on the 1st February 1986, no contract of employment was offered to him and it is therefore incorrect to use the provisions of paragraph 4, to determine this case."They then set out what they say is Schedule 13, paragraph 2. Unfortunately that paragraph has long ago been repealed by the 1982 Act and as I have said paragraph 1(1), (2) and (3) substituted for it though in fact subparagraph (1) is very like the old paragraph 2 and we would not simply on that ground have refused this appeal. The fact is that that point was never taken before the Tribunal and that of itself would be sufficient to prevent the Appellant taking it before us. No evidence was adduced on that one way or the other but in any event there is nothing in the point. It is in our view misconceived. It is perfectly clear to us as the Appellant concedes, that although there may not have been a written contract of employment by September 1991, there was a contract of employment. The schedule does not require that it should be in writing. Accordingly there was a contract of employment as the tribunal impliedly found. It did apply for part of that relevant week and it involved employment for 16 hours or more weekly. The Tribunal were perfectly entitled in our view to reach the decision which they did upon the Preliminary Hearing. There is nothing in this Appeal and it is accordingly dismissed.