Prince v London Borough Of Southwark [1993] UKEAT 285_93_1607

EAT

Prince v London Borough Of Southwark

[1993] UKEAT 285_93_1607 · 1993-07-16

JUDGE J HULL QC:

This is Mr Prince's appeal from the decision of the Industrial Tribunal sitting at London (South) on the 12th January 1993. That Tribunal was considering a preliminary issue on Mr Prince's application to them complaining that he had been unfairly dismissed. That application was made on the 12th March 1992.

I shall have to refer to some statutory provisions. Under Section 67(2) of the Employment Protection (Consolidation) Act 1978 :

"an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months."

So the Tribunal naturally had to enquire into the alleged date of dismissal and see whether, the complaint was presented within three months of that date of dismissal or, if not, whether in their view it had not been reasonably practicable for it to be presented within that time and whether, if so, it was reasonable to allow a further period which would cover the presentation of the complaint. Not merely did they have jurisdiction to do that, they were bound to do it because unless the complaint is presented within the proper time the Tribunal is forbidden by the Act of Parliament to which I have referred, by the express terms of Section 67(2), to hear it, and it was on that inquiry that the Industrial Tribunal launched.

The facts here are that Mr Prince has been employed as a supply teacher, since (he says) June 1987, by the London Borough of Southwark's predecessor and more recently by the London Borough of Southwark. What apparently has happened is that he has been employed on a daily basis and paid at so much a day and he has in fact up to July 1991, so he says, been employed for a term at a time and each term he has been employed on this entirely temporary basis, that is to say on a daily basis, but in fact he has been employed for the whole of the term.

Of course all sorts of questions arise. We have not seen his contract of employment or the conditions on which he is employed. Mr Prince has made the following submission to us, he will forgive me I hope if I paraphrase; relying on a text book he says that "if in fact an employee is employed, whether on a daily basis, a weekly basis or any other basis for a sufficient continuous period then he is in fact entitled to complain of unfair dismissal, if unfair dismissal takes place" and he refers to the qualifying period of two years and he told us about "how you count backwards". I think what he has in mind are the provisions of Section 151(1) of the Act which says:

"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 . . ."

and then it goes in subsection (2) to provide that further matters are to be decided in accordance with Schedule 13. Then if you look at Schedule 13 to the Act, you find in paragraph 9(1) of the Schedule:

"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 or work"

and there are other matters too such matters as pregnancy or custom

"that week shall, notwithstanding that it does not fall under paragraph 3, 4 or 5, count as a period of employment."

and under the earlier part of the Schedule under paragraph 3:

"Any week in which the employee is employed for sixteen hours or more shall count in computing a period of employment."

and then under paragraph 5 where there is a contract it may well be that weeks of at least eight hours can count towards the period of employment. We think that is what Mr Prince has in mind in the submission he has made to us.

So that is the basis of his claim, we say nothing about whether it is the correct basis, but we turn to consider the facts which the Industrial Tribunal itself had to consider. We would start by saying that in the ordinary form by which claimants initiate their proceedings, their complaints to the industrial tribunals, the complainant is required, for the reasons which I have already indicated, to state what is the time at which his employment came to an end. That enables all those concerned with the complaint to see whether it is, on the face of it, in time. What Mr Prince elected to do was not to use the form but simply to write his complaint out, and it does not appear on looking at what he wrote out that he did state the time of his alleged dismissal. I asked him, I am afraid rather more frequently than was polite, when he said his employment came to an end and he said that since he was constructively dismissed he was entitled to choose any time for saying that it came to an end - any time after the breach began.

I have already said that Mr Prince claims that he was employed from June 1987 onwards as a supply teacher and that his employment was, during term time, continuous and accordingly during the holidays of course he would be entitled by virtue of Schedule 13 to the Act to say that that was a temporary cessation of work and so on. That is the way in which he puts his claim. However, at the end of the Summer term in 1991, on the 19th July, worked ceased and from that moment on apparently, so far from making any claim against the employer, whether under the provisions of the Employment Protection Act or simply for salary or anything of that sort, Mr Prince claimed unemployment benefit. That is to say, it appears that he accepted that his employment was at an end, and he went on claiming unemployment benefit all through the Autumn term until he was re-employed, as he would I think put it, by the Authority on the 6th January 1992. So on the face of it he was accepting that he was unemployed from the 19th July 1991 onwards. He asks us to consider an alternative position, which seems to be inconsistent with claiming unemployment benefit, by saying that this was a period, the Summer holidays, when he could not be considered unemployed; but of course he was not re-employed at the beginning of September and from that moment onwards he says there was a repudiation by the employer which led to his being entitled at any time to say "I have been dismissed" and to present a complaint to the Industrial Tribunal. I am putting these matters, I hope, as favourably as they can be put legally in favour of Mr Prince. So then he says he presented his Application on the 12th March 1992 and if you treat, say, the 5th January 1992 as being the date on which he accepted the repudiation and was constructively dismissed by his employers, then the complaint which he made was in time.

We have to look at Section 55 of the Act, which is echoed in Section 83 with regard to redundancy payments. The whole claim rests on the basis that each day of the employment or, conceivably, each term of the employment, was a fixed period for which in fact Mr Prince was employed and therefore one looks to see when he was dismissed because the statute makes special provision for it. Section 55(2) says:

"an employee shall be treated as dismissed by his employer, if, but only if, (a) . . . (b) where under that contract [of employment] he is employed for a fixed term, that term expires without being renewed under the same contract, or (c) the employee terminates that contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer's conduct."

Here, as I say, it appears that the periods of one day, if that is what they were, ended on the 19th July, if it was periods of a term, so did the term. These fixed periods expired without being renewed on that date. But on any view, even supposing that there was a cessation of work and that Mr Prince is entitled, at any rate retrospectively, to say that his work continued thereafter, certainly by the date in September when the schools began work again, he must by that time, under Section 55(2), be treated as dismissed.

There is an element, if I may say so, without wishing to be in the slightest bit offensive, an element of "Alice in Wonderland" in all this because throughout this period Mr Prince was drawing his unemployment benefit; and as I say, we have treated the matter by making every possible legal and factual assumption in his favour. By the beginning of September when the schools began again Mr Prince must, on any view, have been dismissed as it appears to us. Accordingly that was at the latest the moment when time began to run in respect of any complaint of unfair dismissal and, accordingly, much more than three months had elapsed, indeed something like six months must have elapsed by the date when this application for unfair dismissal was made on the 12th March 1992. In those circumstances, which I am afraid I have spelt out at rather monotonous length, the Tribunal addressed itself to the question whether he was out of time. It found that he was out of time. It addressed itself to the question whether it would have been reasonably practicable for him to present his complaint in time and it found that it would have been.

We cannot make any criticism of those findings; on the contrary, they appear to us as matters of law to be inevitable. There was no material laid before the Tribunal, apparently, which could justify them reaching any other conclusion than that time had long since expired for presenting the complaint and that it would have been reasonably practicable to present the complaint within time. Mr Prince has told us that during a substantial part of this period he was, I think through his Association, engaged in negotiations with the Authority. That may well be, but to be engaged in negotiations does not mean that it is not reasonably practicable to present a complaint in respect of these matters, even if they are the matters with which the negotiations are concerned. Therefore it appears to us that this an appeal which must fail as a matter of law and it must proceed no further and we dismiss it today.