James v Gloucester City Council [1995] UKEAT 546_95_1511

EAT
James v Gloucester City Council
[1995] UKEAT 546_95_1511 · 1995-11-15

JUDGE CLARK:

This is an appeal by Mr James against a finding by the Bristol Industrial Tribunal, following a hearing held on 21 April 1995, that his period of continuous employment with the Respondent Council commenced on 14 November 1994. At the outset of his submissions before us, Mr Linden on behalf of the Appellant indicated that he had reached agreement with Mr Ironside, Counsel for the Respondent, who also appeared below, that the appeal should be allowed and the case remitted to the Industrial Tribunal for re-hearing.We are reluctant to allow appeals by consent, which have the affect of disturbing a reasoned decision of the Industrial Tribunal. Accordingly we enquired as to the basis of Counsel's agreement. The grounds suggested for allowing the appeal are two-fold. This was a reference to the Industrial Tribunal under Section 11 of Employment Protection (Consolidation) Act 1978 . Mr James' complaint was that the statement of terms and conditions of employment issued to him on 16 November 1994 gave an inaccurate start date for his period of continuous employment. He contends for the date 12 June 1970; the statement gives the relevant date as 14 November 1994. The Tribunal's powers under Section 11 are contained in sub-section 2(a) and 6. Sub-section 2(a) refers to Section 1 of the Act.

(c) provides:

"The statement of employment particulars shall contain particulars of the date on which the employee's period of continuous employment began.."
Section 151(1) of the Act makes it clear that references in the Act to a period of continuous employment are, for present purposes, confined to a period computed in accordance with Section 151 and Schedule 13 to the Act.Turning to the Industrial Tribunal's extended reasons, at paragraph 1 they set out their task on the reference in these terms:"In this case the applicant seeks a declaration of the terms and conditions of employment which ought to have been incorporated into his statement of terms and conditions from the respondent, under s.11 of the Employment Protection (Consolidation) Act 1978. In practical terms the only point which is at issue is the contractual provision relating to when the applicant's continuous service started or was deemed to have started."...and at paragraph 11 they say:
"... Our task under s.11 of the Act is not to consider whether the applicant has maintained statutory continuity of employment, but to find what are the terms and conditions which ought to have been incorporated in his contract. By s.1 of the Act, one such term required to be incorporated in any statement of terms and conditions is the date on which the employee's period of continuous employment began, taking into account any employment with a previous employer which counts towards that period."
Unfortunately the Tribunal appears to have overlooked the provisions of Section 151. They have set themselves the wrong question - namely, what, if any, contractual term exists as to continuity? The correct and only question here is what is the period of continuous employment under the statute? Thus it is said that there is a self-misdirection on the face of the record, and the decision cannot stand.However, there is a further difficulty. This complaint was presented and argued on the basis of Schedule 13 paragraphs 1(3) and 17(2) to the Act. The Tribunal decided that issue in favour of the Respondent.Mr Linden has indicated today that the Appellant abandons that argument. It will therefore not arise in the future. At paragraph 10 of its decision, the Industrial Tribunal purports to find that the Appellant failed to establish continuity of employment from June 1970 under Schedule 13 paragraph 9 of the Act. Mr Ironside tells us that that issue was never raised during the Tribunal hearing. It was not argued, and no evidence was directed to the point. Accordingly, that finding should not stand under the principle in Laurie v Holloway [1994] ICR 32 .We have considered the matter and in our view both points are well made. In these circumstances we shall allow the appeal and remit the matter to the Industrial Tribunal for determination of the Section 11 reference. The sole issue before the next Tribunal will be whether or not continuity going back to June 1970 is preserved by virtue of the provisions of Schedule 13 paragraph 9(1)(c) of the Act. Finally, it is common ground between the parties that the remitted hearing may take place before any Industrial Tribunal at Bristol. That Tribunal may consist of some, all, or none of the Members of the original Tribunal, according to the administrative convenience of the Office of Industrial Tribunals.