Clifford v Devon County Council [1994] UKEAT 40_93_0407

EAT
Clifford v Devon County Council
[1994] UKEAT 40_93_0407 · 1994-07-04
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Mrs Sheila Clifford against the decision of the Industrial Tribunal held at Exeter on the 19th November 1992.For reasons notified to the parties on the 24th November 1992 the Tribunal unanimously decided that Mrs Clifford did not have two years' continuous employment with the Devon County Council at the effective date of termination of her employment. The effect of the Tribunal's determination on that preliminary issue was that Mrs Clifford was not entitled to pursue the claim made for unfair dismissal in her application presented to the Industrial Tribunal on the 21st September 1992. Mrs Clifford was dissatisfied with that decision and appealed by Notice of Appeal dated 16th December 1992. Her argument was that the Tribunal had erred in law in the way in which it had determined the question whether she had two years' continuous service.The matter was set down for a preliminary hearing. Mrs Clifford attended in person. By an Order of the 19th July 1993 the Tribunal allowed the matter to proceed to a full hearing. This is the full hearing.When the hearing date was notified Mrs Clifford wrote to the Tribunal saying that:
"I am represented by a Solicitor in this case but she already has commitments for that date and will be unable to attend. I would respectfully ask that the matter is adjourned to a later date where I may be represented by my legal representative at the hearing."
She informed the Tribunal:
"I have spoken to Devon County Council in respect of this matter and explained my circumstances, and they have indicated that they would not object to my request for the matter to be adjourned."
There was, however, a later development which led this Tribunal to refuse an adjournment and to insist on the matter being dealt with today.The later event was that this Tribunal was notified that the County Council had now decided not to argue that the appeal should be dismissed. The position now taken by the County Council is that this Tribunal should now remit the case to the Industrial Tribunal at Exeter to hear the substantive claims made by Mrs Clifford.The reason for the change of position by the County Council is that they accept that the recent decision of the House of Lords in the R v. Secretary of State for Employment ex parte Equal Opportunities Commission [1994] IRLR 176 puts a different complexion on the position of Mrs Clifford.The appeal has taken the rather unusual course of the respondent County Council arguing that the appeal should be allowed. Miss Shawkat, for the County Council, has helpfully presented her case with the support of a skeleton argument setting out the Council's submission in relation to the Equal Opportunities case.Mrs Clifford presented her points in support of the original Notice of Appeal that the decision of the Industrial Tribunal was, in any event, in error of law in the state of the law at the time when the case was decided.We will preface our reasons for our decision by saying this: that we do not find it necessary to decide one way or the other whether the Industrial Tribunal was correct in its ruling against Mrs Clifford in the state of law as it was when it reached its decision. The decision we reach today is based solely on the effect of the Equal Opportunities case. Nothing we say is to be construed as a decision one way or the other as to the correctness of the original decision apart from that subsequent case. We mention this in case it becomes relevant at a later stage to argue before the Tribunal or before this Tribunal on the effect of the original decision on Mrs Clifford's substantive claim for compensation for unfair dismissal.We now deal with the argument which has occupied most of our time. It is based on the Equal Opportunities case. In order to understand the argument it is necessary to state briefly the facts which were found by the Tribunal about Mrs Clifford's employment by the Council. She was a public sector employee. The Tribunal found as a fact that Mrs Clifford started employment with the library service of the County Council in November 1986. She was then working 13.5 hours a week. That was increased to 20.7 hours a week in April 1988. That employment continued until August 1990. That employment was brought to an end by a letter of 13th July 1990.In the meanwhile Mrs Clifford has started employment in October 1989 under a separate contract in the Swarthmore Centre for Adult Education, also run by the Devon County Council. In that job she was working 7.5 hours a week until September 1990. The hours were then increased in the Adult Education Centre to 17 hours a week. They continued at that rate until the letter of 1st May 1992 terminating her employment. Mrs Clifford produced a letter from the County Council indicating that she left her employment on the 26th July 1992. That letter is dated the 24th September 1992. The Tribunal found that she did not in fact work after the 29th May but that she was paid in 12 payments per year and that the Council had chosen to pay back payments due to her by creating an arbitrary and artificial date of leaving on the 26th July. Further the Applicant had entered into a contract of employment in 1986 that provided she could aggregate prior periods of employment with the Council or similar authorities to the employment that she then entered, for the purposes of the Employment Protection (Consolidation) Act 1978. The Tribunal, in considering the preliminary issue raised by the Council, then stated, after referring to two authorities:
"we are unable to aggregate the Applicant's [Mrs Clifford's] service within the library service with her service for the Education Department and her service with the latter between October 1989 and September 1990, fell outside the provisions of Schedule 13 of the Employment Protection (Consolidation) Act 1978 in that the hours worked of 7.5 hours per week were insufficient for time to run until they were increased in September 1990. It follows, therefore, that the Applicant does not have two years' continuous service prior to her resignation and, for that reason, her application on the preliminary issue fails."
The way in which the case now appears to the County Council is that the preliminary ruling by the Industrial Tribunal cannot stand because the law which this Tribunal must apply is that stated by the House of Lords in the Equal Opportunities Commission case. In that case the House of Lords made a declaration which is set out at the end of Lord Keith's speech in 1994 IRLR at 182. The declaration was in two parts, the first relating for qualification for redundancy pay and the second to the right to compensation for unfair dismissal. The House of Lords declared:
"1. That the provisions of the Employment Protection (Consolidation) Act 1978, whereby employees who work for fewer than 16 hours per week are subject to different conditions in respect to qualification for redundancy pay from those which apply to employees who work for 16 hours per week or more, are incompatible with Article 119 of the Treaty of Rome and Council Directive 75/117/EEC of 10 February 1975.
2. That the provisions of the Employment Protection (Consolidation) Act 1978, whereby employees who work for fewer than 16 hours per week are subject to different conditions in respect of the right to compensation for unfair dismissal from those which apply to employees who work for 16 hours per week or more, are incompatible with Council Directive 76/207/EEC of 9 February 1976."We agree with Miss Shawkat that the decision has a direct impact on the outcome of this appeal. The only reason that Mrs Clifford failed on the preliminary issue was that, although she had worked for the Council for more than two years, she was not able to satisfy the requirements as to the number of qualifying hours per week. It appears from the House of Lords decision that the number of hours per week which are worked are no longer relevant to qualification for redundancy pay or compensation for unfair dismissal in the case of those public sector employees who have worked for an employer for more than two years. (This is the case whether one is dealing with between 8 to 16 hours per week for 5 years or more than 16 hours per week for 2 years. It is clear from reference to earlier passages in Lord Keith's speech, in particular at the end of paragraph 22, that his conclusions apply to "the thresholds" in the 1978 Act ie the hours per week qualifying thresholds in the 1978 Act.) In those circumstances the conclusion of the Tribunal that Mrs Clifford was not entitled to proceed with her application cannot be supported. It is unnecessary for the reasons mentioned to decide whether those reasons could have been supported, apart from the Equal Opportunities case.For those reasons we shall reverse the decision of the Industrial Tribunal and direct that the matter be remitted to them for hearing of Mrs Clifford's substantive claims for unfair dismissal and redundancy payments on the basis that she did have two years' continuous employment with the County Council at the effective date of termination of her employment. The appeal is allowed. The matter is remitted on the basis mentioned.