Shotton-Gale v Reynolds [1993] UKEAT 544_92_1711

EAT
Shotton-Gale v Reynolds
[1993] UKEAT 544_92_1711 · 1993-11-17

JUDGE HARGROVE OBE QC :

On 1 July 1992 there was a hearing before the Industrial Tribunal at Bristol when it was decided the Tribunal had no jurisdiction to hear the appeal because Mrs Shotton-Gale had not completed two year's continuous service. The Appellant was a cashier at Rodbourne Service Station, Swindon from the end of 1987 until mid-February 1991 when she was told that the employer could not afford to pay her any longer. She left and began work for a Mr Pourzadan at Kingshill Service Station. Dart Oil was the site licensee of each of the petrol stations but they were run apparently under different franchises.The Appellant worked for twelve weeks at Kingshill. She then moved back to Rodbourne where the franchisee had changed by now and was a Mr Daryan. She worked at both petrol stations for four weeks before she returned to Rodbourne full time. Mr Daryan handed over the franchise to a Mr Faghihi who left somewhat abruptly in November 1991. Mr Reynolds then took over the franchise and he dismissed the Appellant for dishonesty at the end of the month.The only question at this stage is whether there was a termination when the Appellant went to Kingshill from February 1991 until mid May. The Tribunal considered whether there had been a temporary cessation. That is dealt with in paragraph 9 of Schedule 13 of the 1978 Act which reads:
"If in any week the employee is, for the whole of part of the week - (a)... (b) absent from work on account of a temporary cessation of work, or (c)..."
The Tribunal have obviously heard argument upon the matter because they put it in this way at paragraph 11 of the Full Reasons:
"The last point raised is the applicant in any event lacks two years' continuous service overall because of her transfer to Kingshill Service Station between mid-February and mid-May of 1991.
On the evidence it does appear to us that Mr Jones ceased to employ the applicant when he concluded that he could not pay her wages any more and suggested she went to a different Service Station where there was a vacancy. It seems to us, therefore, that the applicant's employment contract was taken over by a different manager of a different undertaking when that happened."I pause there to say that is a somewhat unfortunate way of expressing the situation but if one has read the rest of the reasons it is quite apparent that what is being said is that there was a move by this lady, of her own accord, to a totally different employer. The reasons continue:
"She remained in that other manager's sole employment for a period of some 12 weeks. The applicant has prayed in aid paragraph 9 of Schedule 13 to the Employment Protection (Consolidation) Act 1978, and argues that her absence from Rodbourne should not count against her, by reason of what it says in that provision. We have to disagree.
It does not appear to us that the applicant was absent from her employment because of any temporary cessation of work. She was absent because Mr Jones could not afford to pay her any longer. It is not clear, moreover, that she was being regarded as working for Mr Jones during that period of time as the result of some arrangement or agreement. Unfortunately for the applicant, it seems to us that this is one point upon which the respondent is correct. We are unanimous that that 12 week period does appear to be a break in her continuous employment with the respondent and his predecessors in the undertaking and that means that her last period of continuous employment began in or about mid-May of 1991."It has been put before us that in fact there was work continuing in that there was still a need for someone to act as cashier and in support of that view The University of Aston in Birmingham v Malik [1984] ICR 492 has been quoted. That was a case which is different in two important aspects. A lecturer had been told that her contract could not be continued because of lack of funds. What she did was to continue her own researches and preparation for the coming year during the university vacation as she had always done. She was then re-engaged at a later stage and in fact dealt with the teaching programme for the following year.That case indicates that work was continuing, in other words she was still continuing to do the work for which she had always been paid, there had been no cessation of work. That is the first difference. In this case this lady departs and carries on her duties in a totally different environment, maybe doing much the same sort of job but for another employer. The second point is this that in the University of Aston case the Tribunal had decided that there was not a cessation of work and it was then an appeal on that aspect, quite the reverse of the present case.It would be a strange situation if the argument put before us was right which is namely that there can never be a cessation of work if similar work, or the same work even, continues to be performed at the employers' premises or under the employers' organisational management. That cannot be correct and to do so would negate the whole aspect of the Act in this respect. It has also been urged upon us that the fact that there was a temporary job taken later is not decisive. That must be right. It is in some ways trite law that a person may be in a period of temporary unemployment with a particular employer but in that time he takes a job which has a degree of permanency about it when it is originally undertaken. The Bentley Engineering Co Ltd v D Crown and S M Miller [1976] IRLR 146 case has been authority for that proposition for a number of years.The vital problem here facing the Appellant is this. The case of Fall v Warwick County Council [1983] IRLR 127 held:"Whether an interval can be characterised as temporary or transient is a matter of fact. It is the reason for bringing the employment to an end that is material".Here the fact was that the employer could no longer afford the Appellant's services and that was a fact among others which the Tribunal were justified in taking into account and forming the conclusion the cessation was not temporary. We have no reason to doubt that the Tribunal considered all the usual questions relating to the nature of the employment, the length of prior and subsequent service, the reason for the break and the fact that the employer and employee came together again at a later stage.It seems to us that upon that evidence the Tribunal in this case had no alternative but to reach the conclusion that the period of absence from Rodbourne was in fact a break which does not come within paragraph 9 of section 13 and accordingly the appeal on this point fails and is dismissed.