Trevett v London Borough Of Camden [1993] UKEAT 463_92_0107

EAT
Trevett v London Borough Of Camden
[1993] UKEAT 463_92_0107 · 1993-07-01
MR JUSTICE WOOD (PRESIDENT): Mr Trevett is a teacher. He brought proceedings in front of an Industrial Tribunal sitting at London (North) under the Chairmanship of Mrs Stoll claiming a redundancy payment. They heard his case on 22nd May of last year and decided unanimously that it had no jurisdiction. The basis of the decision was that Mr Trevett did not have two years continuous employment which could amount to a qualification period for bringing proceedings under the Employment Protection (Consolidation) Act 1978.From about 1982 Mr Trevett had been a supply teacher. Until the 1st April 1990 he was engaged in working with ILEA, thereafter, he worked for the Respondents, the London Borough of Camden. On the 1st September 1991 the Borough found itself unable to provide any regular work for Mr Trevett, although thereafter he worked from time to time; he decided to bring proceedings.The Originating Application is dated 30th October 1991, it claims a redundancy payment.The Notice of Appearance from the Borough, the Respondent, raises a number of matters. First, it raises the length of the service and continuity of service in paragraphs 1 and 2 of the Notice of Appearance. Secondly, it raises the issue of whether or not there had been a transfer from ILEA to the Borough. Lastly, it claimed that Mr Trevett had not been dismissed and in any event if it got as far as examining the unfair dismissal on the basis of redundancy, there had been the offer of alternative employment, and indeed, that he had been working for them thereafter.Before the Tribunal Mr Trevett appeared for himself in person. The Borough was represented by Mr McMullen of Counsel. The evidence was given by Mr Trevett and for the Borough by Ms Alineri, the Personnel Officer who was, in particular, responsible for the handling of supply teachers. There was also a substantial bundle of documents some of which are now before us, but in any event, a number of them were required for the later issues in the Notice of Appearance and are not therefore necessary for us to examine today.In its decision, the Tribunal set out the cases, quite shortly and clearly. The case for Mr Trevett was that he thought that whilst at ILEA he had been guaranteed work and he felt that ILEA had paid him even if he was not working and that he had been told by ILEA that he had continuity of employment. He said he was in fact paid during school holidays and therefore there was a case of continuity, that there was mutual obligations on both sides and therefore the Industrial Tribunal had jurisdiction.The case for the Borough was really virtually the opposite. They said that they had had a list at the time of the transfer in April 1990 and that Mr Trevett had not been on that list. Secondly, they said that as far as they could gather, ILEA did not consider that the supply teachers had continuity of employment and that he, in any event, was only a casual supply teacher and not a permanent supply teacher. He had applied for the permanency but that could only be achieved after interview and he was not a permanent supply teacher. Further, they described how the system worked and how a vacancy at a school would be notified to the Borough, who might ring up a teacher or wait for the teachers to ring them, and that these casual vacancies were filled for whatever period it was necessary so to do. The documents themselves were of interest in that the terms and conditions under which Mr Trevett had been working were before the Tribunal. They were the ILEA conditions of engagement of supply teachers and also the notes for guidance for the teachers themselves. There was also an extract from the staff book for teachers. All those matters were before the Industrial Tribunal. In particular Mr McMullen drew our attention in the Notes of Evidence to the very clear evidence from Mr Trevett himself that he felt that he was a genuine freelance and was able to work, or not work, as he chose and that there was nothing to require him to work if he did not wish to do so. That of course supported the case being put forward by the Borough, namely, that the proper way to look at the situation contractually was that these were daily hirings.The evidence was there, the submissions were there and the reasoning of the Tribunal starts, as we understand it, in paragraph 8 of the decision. The Tribunal say:-
"The position with regard to the engagement of supply teachers confirms this evidence."
The document was that on page 27 of the bundle before us and it is inciting from that document they say this:
"Under (iii) it states, `The employment offered is temporary and on a day to day basis. Previous service is not recognised for the purpose of continuous employment which therefore dates from the date of this engagement. (iv) All engagements can be terminated without notice and they terminate automatically at the end of each school term. Supply teachers seeking further employment from the beginning of the following term should apply to the Divisional Education Officer. (v) Engagement as a supply teacher confers no claim to permanent appointment and (vi) Supply teachers are not paid for school holidays or days or half days on which the school is closed.'"
Then the Industrial Tribunal makes this following finding it says:
"We find as a fact that there was no payment made to the Applicant during school holidays or days when the school was closed. We find that his engagement ceased automatically at the end of each school term."
Then they considered paragraph 9 of Schedule 13 of the 1978 Act and in paragraph 10 they continue:
"We are satisfied that no contract existed between the Applicant and the Respondent. We are satisfied that there has been no continuity of service between the Applicant and the Respondent. At the end of each school term the Applicant's employment came to an end and it remained for him to indicate whether or not he wished to apply for work at the start of each new term."
therefore, the Applicant had failed to establish that matter.It seems to us, therefore, quite clear that the Tribunal dealt with this matter on the first of the points raised in the Notice of Appearance, namely, the continuity of employment. They found that it was a daily hiring and that really was an end of the matter. There had to be an application, as one would expect, to be considered for hiring at the beginning of each term but in essence that was the end of the matter.Mr Stapley, who appears before us, did not appear on behalf of Mr Trevett in front of the Tribunal. He has raised what is really a new point that which was probably not raised in front of the Tribunal but we do know that they did consider paragraph 9 of Schedule 13. The point he raises is this, he submits, that on a true finding on the facts these were "termly" contracts which came to an end each term. That the practice in ILEA of providing work and paying for work even if it was not, in fact, carried out therefore indicates mutual obligations; he therefore had a termly contract, ending each term, beginning at the new term and only a break during holidays and that that break in the holidays was a temporary cessation within the wording of paragraph 9(1)(b) of Schedule 13 of the 1978 Act. He relies in particular on the well known case in the House of Lords of Ford v. Warwickshire County Council [1983] ICR 273.We have already indicated that the finding of the Tribunal really undermines this submission made by Mr Stapley, but in any event it seems to us that when one looks at the facts of Ford itself the facts are distinguishable from those in the present case. In Ford there were fixed term contracts for the duration of particular courses. There was the right to give notice and in fact that the yearly contract went round and it was only the summer holidays that was considered as the break. That in those respects, and in others, the facts of Ford are very different and most importantly of all it was impressed upon us all by the House of Lords that these are issues of fact and not issues of law.It follows from what we have said here that we can find no criticism whatsoever of the decision of the Industrial Tribunal and this appeal must be dismissed.