McKenry v Northumbrian Fine Foods [1993] UKEAT 595_92_0502

EAT
McKenry v Northumbrian Fine Foods
[1993] UKEAT 595_92_0502 · 1993-02-05
MR JUSTICE MAY: This is a preliminary hearing under the special procedure to enable the Appellants, Gary McKenry and Tracy Campbell; to show cause why their appeal should not be dismissed, in other words show that there is a fairly arguable point of law upon their appeal from the Industrial Tribunal.The Industrial Tribunal had before it an Originating Application by both Appellants for unfair dismissal. The circumstances of the dismissal were not gone into but it was suggested to be concerned with smoking, contrary to explicit rules against that, in a food factory. The Industrial Tribunal sitting on the 29th June 1992, came to the unanimous decision that both Applicants had been continuously employed for less 2 years, ending with the effective date of termination of employment and accordingly that their claims for unfair dismissal should be dismissed.The appeal is against that conclusion and the grounds of appeal concern the fact that, having been engaged in March 1990, both Appellants had a period when they were not employed over Easter of that year.In the case before us this morning, the matter has been argued only on behalf of Mr McKenry. Tracy Campbell has not appeared or been represented but we take the view, that for practical purposes the two cases stand or fall together.In his case he was sent a letter on the 11th April 1990 just before Easter confirming
"that your temporary employment with Shaws will terminate at the end of your shift on 12 April 1990."
and going on to thank him for the help that he had given them in recent weeks and hoping to see him employed again here soon.Immediately after Easter, by letter dated the 17th April 1990, the respondent employer wrote saying:
"We are able to start a night shift, working 10.00 pm - 6.00 am, Sunday through to Thursday each week. The shift is due to begin at 10.00 pm on Sunday 23rd April."
Accordingly, he again became employed from that date.The critical decision of the Industrial Tribunal concerned whether that period of non-employment did or did not constitute a temporary cessation of work within paragraph 9(1)(b) of Schedule 13 of the Employment Protection (Consolidation) Act 1978. The Industrial Tribunal in their reasoned decision came to the conclusion that it did not. Having found that the commencement date of Tracy Campbell was the 26th March 1990 and the commencement date of Gary McKenry was the 19th March 1990, the Tribunal had to determine whether there had been break in the employment during April 1990. The Tribunal unanimously decided that there had in fact been a break in the period of employment. The Tribunal did not consider that it had received any convincing evidence that the period between the 17th April 1990 and the start of employment on the 22nd April 1990 fell within the statutory definition of temporary cessation of employment. This was because, firstly, the terms of employment were clearly entirely different, both Applicants having been employed on day shift terms until they left and then on permanent contracts for night shift when they started again; secondly, because the terms in which both Applicants were told that their employment and their temporary contracts were ended made it clear that particular employment was at an end and that there was no question of the employees being asked back again in the same form of employment as they had previously enjoyed. It was that type of lay-off and return to work which the Tribunal considered the 1978 Act had in mind when talking of temporary cessation of work. This was not such a case. Thirdly, the Tribunal was not convinced in any way that the termination of the contracts of the Applicants was a device to achieve a benefit as far as the Respondents were concerned.The Notice of Appeal contains two grounds of appeal and Miss Tagliavini has indicated that the Appellant; who she represents, only seeks to rely on the first of them. This seeks to assert that the Industrial Tribunal erred in law by misdirection that the words "temporary cessation of work" in paragraph 19(1)(b) of Schedule 13 of the 1978 Act necessarily imported the requirement of the employees being asked back again in the same form of employment as they had previously enjoyed. She has argued before us this morning that the point of law that the Appellants would seek to bring before the Employment Appeal Tribunal is that the Industrial Tribunal wrongly, as a matter of law, imported a requirement, for the purpose of paragraph 9(1)(b) of the Schedule, that the employee had to be re-engaged on the same terms as before. She further makes the point that there appears, from the Reasons given by the Industrial Tribunal, to have been no evidence of the nature of Mr McKenry's employment before Easter of 1990 and the question why he ceased to be then employed was not investigated.We regret to say that we are not persuaded that these arguments raise a point of law. On the contrary, it seems to us that what the Industrial Tribunal were doing, having carefully considered the facts before them, was making a pure finding of fact as in paragraph 3 of their award. They were finding as a fact that this was, so far from being a temporary cessation of employment, a genuine stopping of employment, which as they find specifically was not a device to achieve a benefit as far as the Respondent's were concerned.Accordingly we are not persuaded that it is properly arguable that there was any error of law in this decision and therefore, under the special procedure, the appeals will be dismissed.