Nicholas v DJM International Ltd [1994] UKEAT 920_93_0903

EAT
Nicholas v DJM International Ltd
[1994] UKEAT 920_93_0903 · 1994-03-09

JUDGE HARGROVE OBE QC :

In this case the Tribunal reached the conclusion that there had been a break in Mrs Nicholas' service, a break of a period of one week and as a result of that she did not have therefore the necessary qualifying time in order to mount a claim for unfair dismissal or redundancy.The position appears to have been that after a prolonged period of employment she reached the age of 60 and she was then told her retirement date had arrived. It is undisputed that she did not want to retire and it is also undisputed that after a week she returned to do part-time work. There is no doubt that she received a P45 and that the new contract that she received, by that I mean new contract under which she worked because she never received a written contract, was in almost every way, in different terms to those of her original contract. Her earnings were different, her times, (she had to clock on etc).

(c) The Tribunal approached it in this way:

"We find that the applicant did not wish to retire at 60 or take a pay cut inherent in part-time work and she informed Mr Ron Clapham of those views.
We find Mr Ron Clapham told the applicant that she had to retire and that that meant that there had to be a break.She was given her P45. She accepted changed terms. We reject the suggestion that she was told that she was to go on holiday or that during the week's break she had any duties to comply with under the terms of her contract of employment. We found that the retention by the applicant of the key, in her former capacity as a keyholder had no significance and she would not have been expected under the terms of her contract to hold any responsibility during the course of any emergency. We find that the evidence compels us to the view that the employers intended that the contract of employment be ended and that information was passed to the applicant.The simple issue before the Tribunal is to whether or not under Section 9(1)(c) of Schedule 13 to the Employment Protection (Consolidation) Act 1978 the applicant was "absent from work in circumstances such that, by arrangement or custom, she is regarded as continuing in the employment of her employer for all or any purposes". We find that there was no purpose for which she was regarded by arrangement or custom as continuing in the respondent's employment and there was a consequent break in the continuity of employment."What has been urged upon us is that upon those facts the Tribunal must have misdirected itself in law in reaching a conclusion because there was an understanding (again I am using neutral terms) between the parties that she would be back at work within the end of a week and indeed on the occasion of a retirement party given to her by the employers when she had some presentation made to her, there was a joke made about her being back in harness in a week's time.It has been urged upon us, on the basis of law and Moore v James Clarkson & Co Ltd and also on a basis of Rhodes v Pontins Ltd that once one reaches the situation where there is a gap, where there is an understanding that there will be re-employment at a later stage which can be ascertained, then this section comes into operation.

(c) It is worthwhile looking at those in some detail:

"If in any week the employee is the whole or part of the week absent from work in circumstances such that by arrangement or custom he is regarded as continuing in the employment of his employer for all or any purposes."
It may well be that there was an arrangement that she would return to work part-time but this overlooks the fact that if either party had been asked "Is she in the employment of the employer during that week?" both parties would unhesitatingly have said "No".Accordingly, in our view, the Tribunal was perfectly correct in finding that she was not regarded as continuing in the employment of the employer for all or any purposes. Accordingly the Tribunal did apply the correct test of law and there was adequate evidence upon which they could reach that conclusion. It is, if we may say, a conclusion with which we entirely agree though that of course is not a requisite for dealing with any appeal in this Court. Accordingly this appeal fails and is dismissed.