Adamson v The London Institute Of Higher Education Corp [1995] UKEAT 555_95_1110

EAT
Adamson v The London Institute Of Higher Education Corp
[1995] UKEAT 555_95_1110 · 1995-10-11
MR JUSTICE MAURICE KAY: This Appellant, Jonathan Adamson, is an artist and an art historian. For some 20 years he was employed under a series of contracts at the Camberwell College of Arts as a visiting teacher. The picture we have is that, at one stage, he taught there during each of the three terms in academic years, but this was later reduced to two out of the three terms and, eventually, to just one term in each academic year.The last period of teaching that he did was in the Summer term 1994. The last teaching day of that term was 22 June 1994. By a letter dated 13 July he was informed by the college that his services were not required thereafter.By an application dated 30 September 1994 and received by the Industrial Tribunal on 3 October 1994, he claimed that he had been unfairly dismissed and/or dismissed by reason of redundancy and he sought remedies arising therefrom.The case came before the London (South) Industrial Tribunal on 13 January this year. The unanimous decision of that Tribunal was:(i) that it had no jurisdiction to consider his complaint for unfair dismissal because it was presented outside the three month time limit;(ii) in any event, he was disqualified from claiming unfair dismissal, because he did not satisfy the minimum period of two years continuous employment and(iii) that he was similarly disqualified from claiming a redundancy payment.He now appeals to this Tribunal and today we have heard his submissions on a preliminary (ex-parte) hearing.His submissions fall under four headings and we shall deal with them accordingly:(1) The three month time limit and the effective date of termination of his contractIn any case coming before the Industrial Tribunal relating to unfair dismissal or redundancy, the Tribunal has to establish the effective date of termination of the contract. This is a matter of legal technicality but it has important ramifications.By Section 55(4) of the Employment Protection (Consolidation) Act 1978 it is provided that in relation to an employee who is employed under a contract for a fixed term, effective date of termination occurs where that term expires without being renewed under the same contract.Before the Tribunal, as recorded in paragraph 5 of their decision, it was accepted by both parties that the final current fixed term contract for the 1993/1994 year, which was dated 21 February 1994, came to an end on 22 June 1994. At that time, the Tribunal found, Mr Adamson expected a similar arrangement to continue into the following academic year, until he received the letter dated 13 July 1994 to which we have referred.The case for the employer before the Industrial Tribunal, and the finding of the Industrial Tribunal, was that in those circumstances the effective date of termination under Section 55(4)(c) was 22 June 1994. The argument presented to us by Mr Adamson is that that was wrong in law because he contends that whilst the fixed term expired on 22 June in one sense, he had continuing duties under the contract thereafter.In particular, he says that, in accordance with past practice, he would have proceeded to prepare courses for the following year and under a somewhat unusual arrangement, would have proceeded in the following year to mark essays which had been written by students in respect of the academic year ending on 22 June 1994.The Tribunal heard a considerable amount of evidence on this subject and saw some documentary evidence. There is one document headed "Document A" in the papers before us, that was not before the Tribunal and to which we shall refer later.We have considered this point of law with considerable care. It seems to us that the Industrial Tribunal was entirely correct to hold that, as a matter of law, the last fixed term contract expired on 22 June 1994. The consequence of that is that the three-month time limit provided for by Section 67 of the 1978 Act began to run on that date and expired on 22 September 1994. That being the case, it seems to us that the Industrial Tribunal was entirely correct to decide that the application presented by Mr Adamson some time after that date was out of time.(2) The Industrial Tribunal's refusal to extend the three-month time limit pursuant to Section 67(2).So far as material, Section 67(2) provides:
" .... an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months."
The facts found by the Industrial Tribunal amount to these. Mr Adamson did not know and could not have known, until he received the letter dated 12 July 1994, that he was not to be re-employed the following year. There is no finding as to precisely when he received that letter, but by implication it was within a day or two after it had been sent. Accordingly, he knew his situation by mid-July. He had given evidence that a first draft of the IT1 had been prepared by early August and he had had the advantage of advice, after receiving the letter of 13 July, from the Citizens Advice Bureau, from his Trade Union and from a specialist in Employment Law.It seems that, at all times, he and (so far as he understood) his advisers were under the impression that the three-month limitation period had not started to run until 13 July. Having a first draft of the IT1 by early August, he did not then present the application because of his desire to seek further advice and prepare a fresh copy. In the event, another six weeks were to elapse before his complaint was presented.The Tribunal considered this in paragraphs 11, 12 and 13 of its decision. Its conclusion was:
"12. .... in all the circumstances, we decide that even with the foreshortened period starting on 13 July when the Applicant knew there was to be no renewal, it was still practicable for him to have presented the IT1 by 21 September 1994, that is within three months from 22 June."
That finding embraces a finding of fact that it was and remained practicable, by which it is clear that the Tribunal meant "reasonably practicable", for Mr Adamson to have presented his complaint within the three month period.Unless Mr Adamson can show that that finding of fact was perverse, no point of law in relation to this appeal can arise in relation to the Industrial Tribunal's refusal to extend the three month period.It may be that some other Tribunals might have taken a different view and might have extended the period. That, however is not the test. The test is, "can it be said that no reasonable Tribunal could have found as this Industrial Tribunal did?" In our judgment, the decision of the Industrial Tribunal not to extend the three month period was within a band of reasonable decisions open to it. Therefore, it was not perverse and no point of law arises in relation to it.(3) The two-year qualification period .The Industrial Tribunal dealt with this issue in some detail in paragraph 15 to 22 of its decision. It made a number of findings of fact about the periods in the preceding 20 years when Mr Adamson had been working at the college and when he had not. The essence of those findings of fact is that there had been a succession of fixed term contracts of varying durations. The findings of fact in relation to the later period can be summarised by quoting a passage in paragraph 21 of the decision which states:
"21. .... it is our view that we have seen .... no evidence of any arrangement or custom that the Applicant was regarded as continuing in the employment of the Respondent, and it is our opinion that there was none. In this we find our conclusion supported by the evidence ... that the Applicant was out of contract for 80% of the two year period to 22 June 1994."
The reference there to "any arrangement or custom" is a reference to the provisions of paragraph 9(1)(c) of Schedule 13 to the 1978 Act, which allows an employee to count as part of his continuous employment periods of absence from work in circumstances where "by arrangement or custom he is regarded as continuing in the employment of his employer for all or any purposes".The case for the Appellant is that although his teaching had ended on 22 June, he still had work to do, so far as preparation and marking were concerned. We have already referred to this aspect of the case. Accordingly, Mr Adamson says, during any period in the previous two or more years, when he was not attending the college to give lectures, he was still continuously employed, because at all times he was available for preparation and marking and, indeed, did such acts outside the strict contract period.This was an unusual arrangement, when compared with more conventional forms of employment. It is clear that the Tribunal considered the evidence about it with care. They found as a fact that there had not been continuous employment for the previous two years and in reaching that conclusion they placed considerable emphasis on the finding that Mr Adamson had been "out of contract" for 80% of that period.Again the question arises, and Mr Adamson asks us to consider, was that a perverse finding? If it was not, then we cannot see that a point of law arises in relation to this aspect of this appeal. Having considered the decision of the Industrial Tribunal and heard Mr Adamson's submissions, it is our conclusion that it was not a perverse finding. Indeed, it seems to us to have been the almost inevitable finding.In these circumstances, there is no perversity in relation to it and, again, we do not think that there is a point of law arising out of this aspect of the case that would enable this appeal to succeed.(4) Review .Having received notification of the decision that had gone against him, Mr Adamson, by a letter dated 25 April 1995, asked the Tribunal to review its decision on the grounds therein set out. The Chairman subsequently considered that application and refused the review on the grounds that it had no reasonable prospect of success.It is clear from the reasons appended to that decision of the Chairman that he considered, rightly in our view, that almost all of what Mr Adamson was saying had been, to a greater or lesser extent, canvassed at the original hearing in evidence and in submissions.There was however, one document, document A to which we have already referred, that had not been before the Tribunal. Mr Adamson tells us, and we accept, that that is a document in the handwriting of Mr Greenhalgh, his former head of department; that it came into existence in June 1994, some time before the 22 June; and that it is a manuscript working out prospective hours for the following year, dividing them between such hours as Mr Adamson would actually be teaching and such hours when he would be considered to be marking or preparing, but for which he would still be paid on the same hourly rate.The document was in Mr Adamson's possession at the time of the original hearing and there would have been nothing to prevent him from producing it at that time. That, in itself, makes this Tribunal very reluctant to give further consideration to its subsequent introduction. However, that reluctance is fortified by the fact that, like the Industrial Tribunal Chairman, we take the view that it would not have made the slightest difference to the outcome of the case. In asking ourselves whether any point of law arises in relation to the Chairman's refusal to carry out a review, we are of the firm conclusion that there is no such point of law.Having considered the four headings under which this appeal is brought, we have come to the conclusion that there is no point of law in any of them that has any realistic prospect of success hereafter.It is therefore our duty to dismiss this appeal and we do so. However, before leaving the appeal, we would (all three of us) wish to extend our sympathy to Mr Adamson. It is his misfortune that his working arrangements do not fit very easily into technical legal categories, but that when one applies the law, as the Industrial Tribunal and we have found it to be, it operates against him. He has presented his arguments here in a most clear and intelligent way, and it is an appeal that we dismiss but dismiss with sympathy to the Appellant.