Olla v Sutcliffe Catering (UK) Ltd [1995] UKEAT 760_94_1310

EAT

Olla v Sutcliffe Catering (UK) Ltd

[1995] UKEAT 760_94_1310 · 1995-10-13

JUDGE HULL QC:

Mr Olla is a Chef and he appeals to us against the decision of the Industrial Tribunal sitting at London (North) under the Chairmanship of Mr Menon with two industrial Members on 3 May 1994. They held that his continuous employment did not come to the 2 years which would entitle him to make a claim in respect of unfair dismissal or redundancy pay. Mr Olla was first employed by the Respondents Sutcliffe Catering (UK) Ltd., who we are told are a very large catering organisation in the London area, on 16 February 1990. He was employed as a Chef Manager. He continued in that in two different places for more than 2 years when he was made redundant; received a letter of dismissal, was paid redundancy pay, accrued holiday pay and matters of that sort. That was on 24 December 1992.

The contract under which he was employed, not surprisingly, had a mobility clause in it. Sutcliffe Catering supply all manner of catering services but if they send a Chef Manager to particular premises of course the work may not there go on indefinitely. It is necessary, as with so many other catering workers, distinguished ones like Mr Olla, or more humble ones, cleaners and people of that sort, it is necessary for the employer, in today's conditions particularly, to be able to move them around as a contract supplier of services. The contract we have been shown says:

"At the time when you are issued with this Statement, your Place of Work and Job Title are as recorded on this Form. It is however a condition of employment that you are prepared to transfer within and between Establishments and accept changes in job content, subject to the protection of your statutory interests."

That may be leaving it rather vague and perhaps advisedly so. It quite plainly means, on the face of it, that a person like Mr Olla can be moved around within reason. It might be left to a court or tribunal to say how far he could be moved but on any view, one would think that he could be moved say from the West End to the City and then perhaps into Southwark and down to Mayfair, moves of that order at any rate. He could most certainly be contractually ordered to move by his employers. It is pointed out to us that when that happened the practice was, and no doubt a very good practice, to issue him with a fresh document or part of a document, showing that he had a new place of work. That was not a consensual variation of the contract, it was a unilateral stipulation within the terms of the contract. The employer is entitled to say "this week you will work here, next week you will work there". If the employer chooses to write that into the contract, that is no more than insisting on the right of the employer and recording the fact that that right has been insisted upon and the employee, if he wishes to comply with the contract, must of course go where he is told, within reasonable limits. But those are not for us to determine.

Having been made redundant like that, on 25 March 1993 he, having kept in touch with his employers and various offers having been made to him of further employment, was again employed as a Chef Manager. His work went on (on this occasion) for about 6 months and it came to an end: there was some unhappiness. I do not need to go into the details, but he was dismissed on 5 October 1993. That was the effective date of termination. He complained to the Industrial Tribunal. In his application at page 18 the questions were:

"(1) Whether the Applicant was unfairly dismissed.

(2) Whether the Respondent had failed to provide written reason for dismissal under EPCA s53"

On the face of it, he had only been employed for something like 6 months. He had not got the 2 years service. As anybody who is familiar with this part of the law knows, that is not the end of the question and Parliament had made special provision under Schedule 13 to the Act of 1978 relating to this matter. Under paragraph 9 of Schedule 13 to the Employment Protection (Consolidation) Act 1978 continuity is preserved if:

"... in any week the employee is, for the whole or part of the week-- (b) absent from work on account of a temporary cessation of work..."

and so Mr Olla said "it is true that I was absent from work between the 24 December 1992 and 25 March 1993 but the true view is" (and this is what he commended to the Industrial Tribunal) "that I was absent from work on account of a temporary cessation of work." That was a question of fact for the Industrial Tribunal themselves. It was their duty as the industrial jury, as they have been called, to look into that matter and reach a conclusion about whether it could be said that the provisions of paragraph 9 of Schedule 13 were satisfied, so that it should be regarded as an absence on account of a temporary cessation of work. I must read parts of their decision. I have already stated many of the facts shortly, which are taken from their decision. They set out that he had been advised by a CAB. They had a detailed submission in support of the contention that the Applicant had the necessary continuity of employment to pursue his complaints. The Roehampton CAB relied on paragraph 9(1)(b) of Schedule 13 to the Employment Protection (Consolidation) Act 1978 as amended. They referred to cases to which we were referred, Ford v Warwickshire County Council , Bentley Engineering Co Ltd v Crown and Miller , and Fitzgerald v Hall Russell & Co Ltd .

The Tribunal then set out the relevant statutory provisions, as far as we can see perfectly correctly and including paragraph 9, and they set out the evidence which they had received about how his employment was terminated. They say that when he went back to work, he did not pay back the redundancy money to the Respondent, which he would have been obliged to do had he been re-employed within 3 months of 24 December 1992. That was a point perhaps, but only one point in considering the true nature of what had happened. They said:

"11 The argument advanced on the Applicant's behalf is that there was continuity of employment from 16 February 1990 to 5 October 1993 because paragraph 9(1)(b) of schedule 13 to the 1978 Act applied and that during the period 24 December 1992 to 25 March 1993, the Applicant was "absent from work" under his contract of employment with the Respondent "on account of a temporary cessation of work" within the meaning of that paragraph. It was contended that on the facts of the case(a) there was a temporary cessation of work during the said period;

(b) the said cessation of work was temporary; and

12 The Tribunal rejects the Applicant's arguments. This was not an example of a temporary cessation of work. The Applicant's work at the British Red Cross site came to a permanent end because the site was closed and the British Red Cross terminated the Respondent's catering contract with them. If the Applicant is right, he would be entitled to claim continuity of employment even if his re-employment had taken place, not some months later in March 1993, but a year later in December 1993 and even if the Applicant had worked for other employers in the intervening period. That cannot be right. In The Tribunal's view, paragraph 9(1)(b) of Schedule 13 to the 1978 Act has no relevance to the facts of this case. The Applicant's employment with the Respondent ended on 24 December 1992 for reasons of Redundancy. He commenced a new period of employment with the Respondent on 25 March 1993. There was no continuity of employment from 16 February 1990 to 5 October 1993, because there was a break in the Applicant's period of employment with the Respondent as the Applicant was not employed by the Respondent under a contract of employment during the period 24 December 1992 to 25 March 1993."

What is said to us on behalf of the Appellant is this; it is a question of fact which has to be approached in a particular way and what I have read of the last two paragraphs, 11 and 12, shows that the Industrial Tribunal were not approaching that question of fact in the right way. Mr Suddaby, to whom we are extremely grateful, says that we should have regard to Fitzgerald v Hall Russell & Co Ltd [1970] A.C.984 . The headnote reads:

"Held (Lord Guest dissenting), that in determining whether for the purposes of the calculation of the appellant's redundancy payment the period when he was not working should "count as a period of employment" within paragraph 1(1)(b) of Schedule 1 to the Contracts of Employment Act 1963, the expression "cessation of work" must be construed as referring to the cessation of the employee's work or of work for the employee and not the employer's work.

Held, further, that the case be remitted to the industrial tribunal, which determined it, to find whether the cessation was "temporary," looking at all the facts and circumstances from the time of the first dismissal until that of the dismissal on which the claim for a redundancy payment was made and reaching a commonsense conclusion on the whole matter."

Lord Morris said at page 996 E:

"In determining whether a cessation of work has been temporary the guidance given by Lord Parker C.J. in Hunter v Smith's Dock Co Ltd should, in my view, be followed. If in reference to the time when a cessation of work begins there is evidence showing that both the employer and the employee expected and anticipated that the cessation would only be for a relatively short time, that would be very relevant evidence in considering at a later time whether there had been a temporary cessation of work. But the absence of any such evidence would certainly not be decisive. It is to be remembered that there must be a looking back process and that it is at some time subsequent to re-engagement and in reference to a past period of absence from work that the question is raised whether the employee was absent from work on account of a temporary cessation of work. All relevant evidence and all relevant factors will have to be taken into account. Questions of fact will arise. The duration of one period relative to or in relation to the antecedent and subsequent periods will be one relevant factor."

The other case in the House of Lords to which we were referred is a very important case, Ford v Warwickshire County Council [1983] 2 A.C. 71. In that case the employee was a teacher employed by the respondent council under a series of fixed term contracts. I do not need to go into all the facts. It was held:

"That the word "temporary" in paragraph 9(1)(b) was used in the sense of "transient," i.e. lasting only for a relatively short time and that, therefore, the continuity of employment for the purposes of the Act in relation to unfair dismissal and redundancy payments was not broken unless and until, looking backwards from the date of the expiry of the fixed term contract on which the employee's claim was based, there was discovered between one fixed term contract and its immediate predecessor an interval that could not be characterised as short relatively to the combined duration of the two fixed term contracts, and such characterisation was a question of fact and degree and therefore one primarily for an industrial tribunal."

We were also referred to the case of Hunter v Smith's Dock Co Ltd [1968] 2 All E.R.81 . That was a decision of the Divisional Court of the Queen's Bench Division in which Lord Parker made the observations which I have already referred to. At page 84 D Lord Parker said:

"... it seems to me also plain that cessation of work,... does not mean the closing down of the business, complete cessation of work; it would clearly extend to the cessation of a particular department or, to come nearer to this case, to the cessation of work wholly for rivetters. In my judgment, however, it goes further and is dealing with the cessation of the job of the employee who is dismissed. In dealing with his absence from his job on account of the cessation of that job."

Lord Justice Winn made observations at page 87, saying:

"I, myself, think that the test that should be applied is whether judging in the light of the proven circumstances at the time when the relevant dismissal occurred, taking into account so far as anyone sees fit to tender the evidence, any oral expression of intention of the employer or indeed of the employee, looking at all those circumstances, is the true view that the appellant's employment has been permanently terminated by the notice which terminated the contract of employment? Was he out or merely off? Was he stood off or had they finished with him?"

To see how far the provisions of this paragraph can extend, we were cited a case - as I say all these are cases on the proper way to arrive at what is a decision of fact - Bentley Engineering v Miller

[1976] ICR225

, a decision of Mr Justice Phillips who was a particularly noted exponent of this department of the law. The facts, which I read from the headnote, were:

"In 1963 C and M, the employees, were dismissed for redundancy by G Ltd. after 15 years' employment. C obtained other work but M did not. After periods of two years and 21 months respectively the employees commenced work with the employers, an associated company of G Ltd. but both were subsequently made redundant and were given redundancy payments calculated on their employment with the employers. Within six months of his dismissal C brought an action claiming a further redundancy payment based on his employment with G Ltd. M brought a similar action two years after his dismissal. Industrial tribunals found that the periods of cessation of work were temporary in both instances; that the employees' absences were on account of that cessation and that they had been continuously employed within the meaning of paragraph 5(1)(b) of Schedule 1 to the Contracts of Employment Act 1972. The tribunals further held that although the employees did not resume employment with G Ltd. after the cessation of work, paragraph 10 of Schedule 1 applied to preserve their continuity of employment and that M's claim, although made more than six months after his dismissal, was not barred by section 21 of the Redundancy Payments Act 1965.

On appeals by the employers:--

Held, dismissing the appeals, (1) that since the employees had been taken into the employment of an associated company their continuity of employment was preserved by paragraph 10 of Schedule 1 to the Contracts of Employment Act 1972 and they could bring into account any period of employment they would have relied on had they been re-employed by the original employers.

.... (2) That the tribunals had applied the right tests in having regard to the length of the employees' break in their employment as compared with their total period of employment and to the fact that C had obtained other work during the break when considering whether the cessation of work was temporary within paragraph 5(1)(b) of Schedule 1 to the Act of 1972 and whether C's absence was on account of that cessation; and that, accordingly, it could not be said that the tribunals had misdirected themselves."

That is a case which might be said to go fairly near to the limit of what could be held to be a temporary cessation. It is at any rate a striking example. We have to ask ourselves: did this Industrial Tribunal, in dealing with what was a question of fact, approach it in the way which these very distinguished authorities, to which I have referred, indicate that they must? Ms Moor, who has endeavoured to support the conclusion reached by the Industrial Tribunal, has said to us merely: this was work at a particular site and the Industrial Tribunal were therefore entitled to say it had come to an end at the site, as they did. They said the Applicant's work at the British Red Cross site came to a permanent end, because the site was closed.

His work was as a Chef Manager and as I have indicated, under the mobility clause he could undoubtedly, had work been available at another site, have been ordered there the very next day under his contract of employment. It does sound as if they were saying that because it had ended at that site, that was the end of the matter.

We disagree with the submission made by Ms Moor that the fact that a new document was prepared shows it was in effect a new contract. It seems to us that the employers were doing no more than good order might require; that is to say, writing in on the contract, on a new bit of paper, something they were entitled to write on the contract, not varying the contract at all, but simply saying that we are going to implement the contract next week in this particular way by ordering him to a fresh site.

The Tribunal go on to say:

"... In The Tribunal's view, paragraph 9(1)(b) of Schedule 13 to the 1978 Act has no relevance to the facts of this case. (They were putting it out of their minds.) . .. There was no continuity of employment from 16 February 1990 to 5 October 1993, because there was a break in the Applicant's period of employment with the Respondent as the Applicant was not employed by the Respondent under a contract of employment during the period 24 December 1992 to 25 March 1993."

It seems to us there that the Tribunal were not approaching the question in the way that they were required to do by the cases to which we have referred. If they had said "we have looked back here, starting in October 1993 looking backwards, and on our view, on all the facts in this case, this was not (as the statute puts it) an absence from work on account of temporary cessation of work, it was in our view more than that, it was an absence from work because work had on the true view come to a conclusion; and we think, giving the words their natural meaning and being wise after the event, having regard to the total period of the employment and the nature of the work, and everything else which has been explained to us in evidence that seems relevant to us, this could not be called an absence on account of a temporary cessation of work, it was more than that" - Then, of course, that would have been an unassailable decision of fact by them.

It seems to us that they have, or may have, adopted the wrong test by saying that there was a permanent cessation of work at the British Red Cross and that paragraph 9(1)(b) therefore has nothing to do with it. The mere fact that work at the British Red Cross premises where he was working had come to an end, because the Red Cross were moving to other premises, cannot in our view, on the authorities, be conclusive. It might be a very important point in their considerations, in looking at the facts as a whole. They certainly should have gone to the end of the period, looked back, and said "well here is a man with something over 3 years employment, here is a man who was off for 3 months, we must look at all the circumstances, can we say to ourselves under paragraph 9(1)(b), looking at the documents, looking at everything else which has been explained to us, that this was an absence from work on account of a temporary cessation of his work as a Chef Manager or can we not?" That was the way in which they should have approached the question and certainly they did not spell out that that was their way of doing it and it appears to us that it probably was not. They considered all the other facts in a way of which no criticism is made and we think the right thing to do is to ask them to look again at the authorities which were cited to them and which because, apparently, of an oversight they do not appear to us to have given full effect to; they should look at those authorities again very carefully, and approach the matter in the way which we have endeavoured to indicate to explain why we are allowing this appeal, but making use of the language of the learned judges which we have cited, to ask themselves the correct question approached in the correct way, and say what their conclusion is having done it in that way. They may reach the same conclusion. They may reach a very different conclusion. It is not for us to tell them how to decide the facts. If they do it in the way which we have indicated, they will then arrive at a conclusion and it is of course for the parties to make submissions to them about the facts and adduce further evidence if that is considered necessary and if the Tribunal is prepared to entertain such evidence. Those are matters for the Tribunal. All we do is to say that we remit this case to the Industrial Tribunal on the basis which we have indicated. We ask them to reconsider the matter in the light of the authorities. We ask the Tribunal to arrange a hearing a soon as possible. It may be that this can be dealt with very shortly, in view of the amount of evidence which they have already heard.

The appeal is allowed to that extent.