Hollowell v Balaam (t/a Alexandra Beauty Clinic) [1993] UKEAT 90_93_0704

EAT

Hollowell v Balaam (t/a Alexandra Beauty Clinic)

[1993] UKEAT 90_93_0704 · 1993-04-07

JUDGE J PEPPITT QC:

This is the preliminary hearing of an appeal from the Leicester Industrial Tribunal which on the 19th November 1992 held unanimously that it had no jurisdiction to entertain Miss Hollowell's application.

The Tribunal's decision was based on Section 64 of the Employment Protection (Consolidation) Act 1978 and its finding that Miss Hollowell was not continuously employed for a period of not less than two years, ending with the effective date of termination. It was accepted before the Tribunal that Miss Hollowell's employment was terminated on the 18th July 1992 and that was the date which the Tribunal held to be the effective date of termination. Mr Stern, on Miss Hollowell's behalf, has argued today that in the circumstances of this case Miss Hollowell would have been entitled to one week's notice, so that accordingly the effective date of the termination of her employment was one week later, the 25th July. We have looked at the termination letter, dated the 18th July 1992, from which we are unanimously of the view that that letter as a matter of construction could only constitute a notice of summary dismissal, as indeed the Tribunal found. There was, it is true, no inclusion in that letter of the words "gross misconduct" but the reasons given in it for Miss Hollowell's dismissal was that she had shown only rudeness, arrogance and complacency towards Miss Balaam the proprietor of the Alexandra Beauty Clinic at which Miss Hollowell worked. Accordingly we think it was beyond argument that the employment effectively terminated on the 18th July.

Against that background Mr Stern invites us to reconsider the findings made by the Tribunal. Miss Hollowell's college education ended at the end of the Summer term of 1992. Before the end of that period of education she had worked for the Respondent as a holiday girl confining her activities initially to Saturdays. At the end of the 1992 Summer term she attended at the salon more frequently and during the week ending the 7th July 1990 she worked for three days. During the week ending 14th July 1990 for two days and during the week ended the 21st July for a further three days. Mr Stern submits that because she worked either an 8 hour or a 6 hour day, it can be deduced from the wages records that she worked during those three weeks 22 hours, 14 hours and 22 hours respectively. There followed two weeks' holiday, over the weeks ending the 28th July and the 4th August, by arrangement with the Respondents, the holiday being unpaid. In the following week, the week ended 11th August 1990 she worked a full five days, that being the week in which the Tribunal found that the employment started. The Tribunal in fact found that the employment commenced on the 7th August 1990. If that were right she did not serve the requisite two years before the effective date of her dismissal. Of the work which Miss Hollowell did before the 7th August 1990 the Tribunal said and we quote from paragraph 4 of the decision:

"The applicant was to finish her course at the College at the end of June 1990. The applicant says that immediately after she finished at College, she was taken on full-time by the respondent and that that employment continued thereafter. She agrees that she had a fortnight's holiday at the end of July and the beginning of August, for which she was not paid, but consent for which was given by the respondent. The respondent's evidence is that the applicant, as she came towards the end of her College course, sometimes spent more than the Saturday at the clinic and that this continued during July, when it was agreed that the applicant would commence as a full-time employee after she had finished her holiday. This would be on 7 August 1990."

The Tribunal inspected the Respondent's wages book which showed that for the weeks ending the 7th and 14th July and the 21st July, Miss Hollowell was paid for the days which Mr Stern indicated but was paid gross without any deduction for tax or national insurance. For the week ending the 11th August 1990, being the week when the Tribunal found that the employment commenced, those deductions were made from her salary. Against that background the Tribunal found that the payments before the 7th August were consistent with part-time work and consistent with the evidence which the Respondent had given. The Tribunal were satisfied that the entries in the wages book were made contemporaneously and were not written up for the benefit of the Tribunal. With the assistance of the wages book the Tribunal accepted the evidence of the Respondent and held that the employment commenced on the 7th August.

By that finding the Tribunal must necessarily have rejected Miss Hollowell's evidence that she was employed full-time from 7th July 1992 receiving a wage of some £75 for each of the subsequent weeks, except the two weeks for which she was on holiday.

In our judgment this appeal must be dismissed for a number of reasons. First of all we are faced with a finding of fact by the Tribunal with which we are not empowered to interfere. Secondly, because the entries in the wages book which the Tribunal found to have been genuine suggest to us that before the 7th August Miss Hollowell was not an employee of the Respondent in the sense that that word is used in the Act, but was as the Tribunal described it "a part-time worker" or perhaps more properly "a person employed not on a contract for service but on a contract for services". Thirdly, we have taken into account paragraph 9 of the 13th Schedule to the 1978 Act, a paragraph which provides that weeks in which the employee wholly, or in part, does not work may nevertheless count to make up the qualifying period under Section 64 of the Act if the employee's absence for work is for one or more of four specified exceptions. Miss Hollowell's holiday during the weeks ending the 28th July and the 4th August 1990 does not fall within any of the recognised exceptions and accordingly, whatever may be the merits or demerits of her argument on other grounds, she fails on those two weeks to qualify under Section 64.

It seems to us that the Tribunal took the view that there were two contracts, a part-time contract or a contract for services before the 7th August 1992 and a contract of employment thereafter. That was a finding which in our judgment the Tribunal was entitled to make. For that and for the other reasons which we have sought to indicate we are unanimously of the view that this appeal must be dismissed.