Bishop v Caledonian Mining Co Ltd [1994] UKEAT 353_93_2907

EAT
Bishop v Caledonian Mining Co Ltd
[1994] UKEAT 353_93_2907 · 1994-07-29
MR JUSTICE MUMMERY (PRESIDENT) This is the second time that the Employment Appeal Tribunal has had to consider the claim for unfair dismissal made by Mr Martin Bishop against the Calendonian Mining Co Ltd ("Caledonian"). The point at issue on both appeals is a preliminary question, namely, whether Mr Bishop had completed two years' continuous service as an employee of Caledonian at the time of his dismissal on 25th February 1992. If he had not, the Industrial Tribunal had no jurisdiction to entertain his complaint.On the first time round the Industrial Tribunal decided, for reasons notified to the parties on 10th November 1992, that Mr Bishop had sufficient continuous service to present a complaint for unfair dismissal against Caledonian. On Caledonian's appeal to the EAT on 25th February 1993 the case was remitted to a differently constituted Tribunal.The second hearing before an Industrial Tribunal was held at Nottingham on 8th March 1993. For reasons notified to the parties on 12th March 1993 that Tribunal unanimously decided that it had no jurisdiction to entertain Mr Bishop's claim, which was accordingly dismissed. Now Mr Bishop appeals. He conducted his case in person both before the Industrial Tribunal and on the appeal. After we had concluded the hearing and reserved judgment, Mr Bishop made further written submissions, which we have taken into account in this decision.In our judgment, Mr Bishop's appeal should be dismissed because there was no error of law in the second Industrial Tribunal decision. Before we state our reasons for this conclusion, we should first summarise the relevant findings of fact made by the Tribunal.

Background facts

The Industrial Tribunal found the following facts:-

(1) Mr Bishop is a graduate engineer of Cambridge University. Caledonian carry on business as consultants in mining and international construction methods.(2) Professor Appleton, who was one of Mr Bishop's lecturers, was also a non-executive director of Caledonian. In 1989 he discussed employment possibilities with Mr Bishop who was, at that time, unemployed.(3) On 20th October 1989 Mr Bishop was taken on as an employee by Caledonian on a day-to-day basis and was paid by the hour. Caledonian put Mr Bishop forward as a graduate for the Teaching Company Scheme funded by various public funds with the object of placing a graduate with a commercial organisation for the mutual benefit of that organisation, of the University and of the graduate.(4) By a letter dated 15th November 1989 the University of Cambridge (Department of Engineering) offered Mr Bishop an appointment as a Research Assistant in the Department with tenure from 1st December 1989 until 30th November 1991. The offer was of a fixed term contract excluding any right to redundancy payment and any claim in respect of rights under S.54(1) of the Employment Protection (Consolidation) Act 1978. A written statement of particulars of the contract of employment was attached to the offer letter. The salary was stated to be £11,736 per annum with annual increments.(5) On 21st November 1989 Mr Bishop signed a letter of acceptance.(6) Caledonian agreed to top up Mr Bishop's salary to £15,500 per annum a level appropriate to a graduate in industry. That arrangement continued until 30th November 1991 when Mr Bishop's appointment with Cambridge University expired.(7) From then until 25th February 1992, when he was summarily dismissed, Mr Bishop's full salary (£22,173 p.a.) was paid by Caledonian.

The Decision of the Industrial Tribunal

The Tribunal heard evidence from a Teaching Company representative (Mr Coppen) and from Professor Appleton and reached the following conclusions on the evidence.(1) The Teaching Company Scheme was a bona fide scheme, not a sham as contended by Mr Bishop. Its aims were to confer benefits on the participants in the scheme.(2) Mr Bishop was an employee of Cambridge University between November 1989 and November 1991 under the terms of the contract signed by him."... although he worked at the respondents during this period he is in no different position than would someone be working under a Youth Training Scheme ... . The fact that the respondents have "topped up" his grant is, in our view, totally irrelevant. That, in our view, cannot begin to make the applicant an employee of the respondents." (paragraphs 9 and 11)(3) The period of Mr Bishop's employment by Cambridge University could not be counted towards employment with Caledonian and what employment there was with Caledonian in the few weeks prior to the end of November 1989 and for several months after the end of November 1991 was insufficient continuous service to support his claim for unfair dismissal.

Mr Bishop's submissions

Mr Bishop contended that the Industrial Tribunal erred in law in concluding that he was not continuously employed by Caledonian or by an associated company of Caledonian under a contract of employment for a period of not less than two years ending with his summary dismissal on 25th February 1992.

Mr Bishop made the following points in support of his contention:-

(1) Between 20th October 1989, when he commenced employment with Caledonian to help commission an automated production line, and 25th February 1991 he worked full time at Caledonian as projects engineer, received a salary, as confirmed by salary slips, from Caledonian, and was employed by and under the control of Caledonian. Prior to joining Caledonian he had completed his training necessary to gain membership of the Institution of Mechanical Engineers, his professional institution.(2) On 21st November 1991 he signed a contract of employment in writing with Cambridge University for a two-year fixed term from 1st December 1989 until 30th November 1991. That contract contained all the usual terms of an employment contract and Mr Bishop received a salary from Cambridge University for that period. He also received pay continuously from Caledonian from 20th October 1989 until his dismissal on 25th February 1992. At the date of the fixed term contract with Cambridge University, no P.45 was issued by Caledonian to indicate a termination of his employment with them. His activities and responsibilities while working at Caledonian did not change when the Teaching Company Scheme commenced. He was a fully trained employee of Caledonian before he was put on the Scheme.(3) Mr Bishop made comparisons between the Teaching Company Scheme, the Youth Training Scheme and the Youth Opportunities Scheme (under which a trainee may or may not be employed) and submitted that the Teaching Company Scheme was a partnership between an academic institution and an industrial organisation. It was described as such in the documents which indicated that the ultimate responsibility for the business programme "lies with the industrial partner".(4) The Industrial Tribunal erred in law in holding that he was employed on a training scheme by Cambridge University and that that period could not be counted towards his employment with Caledonian. The fundamental error of the Tribunal was to analyse the nature and purpose of his placement with Caledonian without the benefit of documents relating to his training and responsibilities. No objection was raised to us seeing those documents but we refused an adjournment to Mr Bishop for further evidence. He submitted that those documents showed that his training was complete prior to his joining Caledonian and that his responsibilities with Caledonian were continuously of a commercial nature, not of a training nature. In those circumstances the second Industrial Tribunal ought to have come to the same conclusion as the first Tribunal, that he was employed by Caledonian continuously but that, for a period, he also had a parallel contract of employment with Cambridge University.(5) Alternatively, if the primary purpose of his work with Caledonian was training, it was training in a trade and his contract was one of apprenticeship. The purpose of the Teaching Company Scheme was to prepare associates for senior management positions within industry. The trade that was being learnt was that of management. The consequence was that, if there was a contract of apprenticeship, then Mr Bishop was still covered by the provisions of the 1978 Act.(6) Alternatively, a partnership existed between Caledonian Mining Company Teaching Programme and Cambridge University and Mr Bishop was employed by that partnership. The control of the partnership was with Caledonian. The partnership was therefore an associated company of Caledonian.In summary, Mr Bishop submitted that the Industrial Tribunal ought to have found that contract of employment or a contract of apprenticeship existed between him and either Caledonian or an associate of Caledonian during the two year period of the contract that he had with Cambridge University. Accordingly, he had the two years' continuous employment for the purposes of S.64(1)(a) of the 1978 Act, which would give the Tribunal jurisdiction to hear his complaint under S.53 and S.54 of the Act.

Conclusion

After full consideration of Mr Bishop's arguments, we have reached the conclusion that they do not establish an error of law on the part of the Tribunal. We agree with the submissions made by Mr Peter Clark on behalf of Caledonian. The legal position is as follows:-(1) In the first Industrial Tribunal decision it was held that during the period 1st December 1989 to 30th November 1991 Mr Bishop was employed under parallel contracts of employment both by Cambridge University and Caledonian and, therefore, he was continuously employed by Caledonian from 20th October 1989 to 25th February 1992.(2) On appeal the EAT decided that the Tribunal had erred in law in failing to consider whether the primary purpose of Mr Bishop's placement with Caledonian under the Teaching Company Scheme was training or work. The matter was therefore remitted to another Industrial Tribunal to determine that issue.(3) At the re-hearing the Industrial Tribunal heard evidence from Mr Coppen, a Teaching Company consultant responsible for Mr Bishop's placement with Caledonian, and from Mr Bishop's former tutor at Cambridge and a non-executive director of Caledonian, Dr Appleton, who set up the placement. The second Tribunal also had before it documentary evidence not before the first Tribunal detailing regular quarterly Scheme meetings at which Mr Bishop's progress was discussed.(4) The main issue at the second hearing was whether this was a genuine Teaching Company Scheme or a sham. The Tribunal found that, on the evidence before it, it was a genuine scheme and that Mr Bishop was in no different position than someone working under a Youth Training Scheme. The conclusion was that he was employed solely by Cambridge University during the period of the fixed two-year contract of that University and that he had insufficient continuous service with Caledonian to give the Industrial Tribunal jurisdiction.(5) Mr Bishop's primary submission that he was employed under parallel contracts with Cambridge University and Caledonian during the two-year contract period is a repetition of the argument accepted by the first Tribunal but held to be legally flawed by the Appeal Tribunal. We agree with Mr Clark that the repetion of this submission on the appeal ignores the fact that the second Tribunal was directed to consider the specific issue whether the primary purpose of Mr Bishop's placement with Caledonian was training or work. The Tribunal heard evidence on that issue and found facts in favour of Caledonian which they applied in accordance with the law as directed the Employment Appeal Tribunal. In those circumstances there was no error in the second decision.(6) As to the alternative submission that during the relevant period Cambridge University was an associated company of Caledonian by virtue of a partnership, this submission was not tenable having regard to the definition of "associated employer" in S.153(4) of the 1978 Act. That definition is as follows:-
"For the purposes of this Act, any two employers are to be treated as associated if one is a company of which the other (directly or indirectly) has control, or if both the companies of which a third person (directly or indirectly) has control; and the expression "associated employer" shall be construed accordingly."
We agree with Mr Clark that the definition does not apply. Neither Cambridge University nor Caledonian had control of one another. Nor are they controlled by a third party. They are not, therefore, associated employers and the continuity provisions in paragraph 18 of Schedule 13 to the 1978 Act do not apply.For all those reasons this appeal is dismissed.