Pfaffinger & Anor v City Of Liverpool Community College & Anor [1996] UKEAT 423_95_0403

EAT

Pfaffinger & Anor v City Of Liverpool Community College & Anor

[1996] UKEAT 423_95_0403 · 1996-03-04

MR JUSTICE MUMMERY (PRESIDENT) Both appeals concern the predicament of part-time lecturers employed under successive fixed term contracts at colleges of higher education faced with financial cuts and consequent reductions in the hourly rates paid for part-time teaching.

As observed by Lord Diplock in Ford v. Warwickshire County Council

[1983] ICR 273

at 283G - 284B there has long been a fashion for fixed term contracts for part-time teachers of courses at colleges of higher education and for supply teachers in schools:-

"There are many employments, of which teaching is one of the largest and most obvious, in which it is perfectly possible to predict with accuracy the periods in which the educational institution at which a teacher is employed to conduct courses in particular subjects will have no work available for that teacher to do ie, during the three annual school holidays or during vacations at universities and other institutions of further education. As the evidence in the instant case discloses, it is common practice to employ part-time teachers of courses at institutions of further education under successive fixed term contracts the length of which is fixed according to the duration of the particular course and expires at the end of it. In the interval between successive courses which may coincide with the end of one academic year at an institution of further education and the beginning of the next but may be considerably longer, there is no work available at the institution for the teacher to do, and he remains without any contract of employment until the course is resumed, when he again becomes employed under a fresh fixed term contract.

A somewhat similar practice is followed in relation to what are known as "supply teachers" in schools, although in their case each fixed term contract is for a single term only. During each of the three annual school holidays between school terms the supply teacher has no contract of employment."

In these two appeals the part-time lecturers on courses at colleges of further education were contractually in the same position as the supply teachers in schools referred to by Lord Diplock. Their fixed term contracts were only for a single term at a time. Fixed term contracts find favour with colleges because they provide greater flexibility in numbers of staff, hours of work, course subjects and availability of finance. The contract fixed for a term does not usually contain any obligation to renew it for the next term, let alone for the next year, even though the particular course carries on beyond that term or even that year. The flexibility is, of course, mutual. If the employer college is under no legal obligation to renew the contract for another term, the part-time lecturer is under no legal obligation to return to teach the course the next term. As well as being free to do other work during the vacation, he is free to take on a new job, for example, at another college, for the next term.

The questions for decision on these appeals are: What is the legal position of a part-time lecturer whose fixed contract for a term expires without being renewed for the next term? Is he dismissed? If so, what is the reason for his dismissal? Does he have a claim for compensation for unfair dismissal? Does he have a claim for a redundancy payment? In this decision we shall answer these questions. It is first necessary to summarise the facts and decisions of the Industrial Tribunal in each of the cases. We shall then summarise the applicable statutory provisions and legal principles and, finally, state our conclusions.

Mrs Pfaffinger's Case

This appeal is against the decision of the Industrial Tribunal held at Liverpool on 14th February 1995. The Tribunal unanimously decided that Mrs Pfaffinger was not unfairly dismissed by the City of Liverpool Community College ("the Liverpool College") and was not entitled to a redundancy payment. The Extended Reasons run to 28 pages and were sent to the parties on 16th March 1995. On 20th April 1995 a Notice of Appeal was served. An answer and cross-appeal was served by the Liverpool College in July 1995.

There was no serious dispute about the relevant facts in Mrs Pfaffinger's case. They may be briefly stated as follows:-

(1) Mrs Pfaffinger is exceptionally experienced and qualified in theatrical and costume design, both by vocation and academically.

(2) In 1980 Mrs Pfaffinger began to teach part-time at the Mabel Fletcher Technical College, which later changed its name to Liverpool College.

(3) She taught part-time under a succession of fixed term contracts, as was common practice for part-time lecturers at that College, and in the field of higher education generally. Each contract lasted for one academic term and was for the temporary post of a part-time lecturer. The written contract was rarely, if ever, supplied to her before the beginning of each term. She did not receive any pay for the vacations.

(4) Mrs Pfaffinger worked under fixed term contracts for each of the three terms of each academic year between 1980 and 1993. She assumed at the end of each academic year that a new contract would be offered to her for the next term to teach students on a three-year course for a Higher National Diploma. In each academic year up to the end of 1992/93 a contract was offered to her. That coincided with the need to start planning, during the current contract, for the next academic year.

(5) The last relevant contract was issued to Mrs Pfaffinger on 23rd April 1993, backdated to 1st March 1993. That contract was in respect of teaching the subject "Props" for 10 hours for two days a week between 1st March 1993 and 25th June 1993, on which date the contract was stated to expire. She in fact worked beyond that date for a few extra days for which she did not receive any additional payment.

(6) During that last term in the summer of 1993 Mrs Pfaffinger was involved in the preparation of a time-table for the next academic year, because it was taken for granted that she would be back to teach. There was a general expectation that she would return in September 1993. Indeed, there was an oral agreement with her Head of Department (Mrs Kent) that she would return. She would not normally expect a contract for that next term to be available to her before November or December. She would not expect to wait to take up her post until she was issued with that contract.

(7) During the summer of 1993 the College decided to make savings in payments to part-time lecturers. Financial constraints led to negotiations between the Liverpool College and the Lecturers' Union, NATFHE. Negotiations were about a single rate of pay in substitution for the previous grading system whereby rates of pay depended on the type of course on which each lecturer taught. The proposed system would be easier to administer and would involve far less expense to the College. The majority of lecturers would receive a higher rate of pay than under the previous arrangements.

(8) Mrs Pfaffinger was not a member of NATFHE. She knew nothing of the negotiations between Liverpool College and the Union. Because of the negotiations with the Union, Liverpool College did not seek to negotiate individually with the part-time lecturers, such as Mrs Pfaffinger. The Union and Liverpool College formally reached an agreement on 16th July 1993 for payment of part-time lecturers at the rate of £15.64 per hour.

(9) On 14th July 1993 Mrs Kent, Mrs Pfaffinger's tutor in charge of the Theatre Wardrobe Course, wrote to her and informed her that the hourly rate for part-time staff would be reduced in her case from £22.41 per hour to £15.90 per hour. Mrs Pfaffinger was previously paid the top grade rate of £22.41 per hour. The letter offered to continue her position. She was offered a new contract, but on different terms. She rejected the offer in a letter of 22nd July 1993. She did not return to work at Liverpool College in September 1993. She has not carried out any further work for that College since then.

(10) On 21st September 1993 Mrs Pfaffinger presented an application to the Industrial Tribunal claiming constructive dismissal by the College on 22nd July 1993 and a redundancy payment. She claimed that the gross reduction in her terms and conditions of employment constituted a constructive dismissal. In its Notice of Appearance dated 10th December 1993 the College denied continuity of employment and constructive dismissal. They contended that her employment terminated by reason of the expiry of her contract on 25th June 1993, not by reason of her resignation or of a breach of contract by the College. If, contrary to the College's contention, she was dismissed, it was a fair dismissal either by reason of redundancy or for some other substantial reason. That other substantial reason consisted of considerations of financial viability and the negotiations with the Union which had led to an agreement on new hourly rates of pay.

The Decision of the Industrial Tribunal

The Industrial Tribunal rejected Mrs Pfaffinger's claims. Their conclusions were as follows:-

(1) Mrs Pfaffinger had the necessary continuity of service to enable her to bring her case of unfair dismissal. That point was decided by the Tribunal at a preliminary hearing on 11th May 1994 on the basis of the provisions in paragraph 9(1) of Schedule 13 to the Employment Protection (Consolidation) Act 1978 and the decision of the House of Lords in Ford v. Warwickshire County Council

[1983] ICR 273

(2) The relationship between Mrs Pfaffinger and the Liverpool College did not end in fact or in law "for all purposes" on 25th June 1993 (paragraph 27). During the period prior to 25th June 1993 Mrs Pfaffinger had commenced work for the preparation for what the parties agreed Mrs Pfaffinger would carry out from September 1993. Some aspects of the preparation for the new term would be carried out by Mrs Pfaffinger after 25th June "although she would not be employed after that date". There was a verbal agreement with Mrs Kent that Mrs Pfaffinger would provide her services to the College with effect from September 1993. The legal relationship between the parties was not terminated on 25th June. Her employment was treated as continuous "notwithstanding the expiry of the contract". The relationship continued up to and including 22nd July 1993. It was a fundamental term of that relationship on the part of Liverpool College to pay Mrs Pfaffinger for her teaching duties at the rate of £22.41 an hour. The reduction of that rate by 29% was a fundamental breach of contract by Liverpool College and amounted to a constructive dismissal of Mrs Pfaffinger when she accepted that breach as a repudiation of the contract.

(3) If the relationship did end on 25th June 1993, the reason for termination was some other substantial reason within the meaning of S.57, not redundancy. It was held in paragraph 31 of the decision that,

"The reason for the dismissal was the expiry of the fixed term contract, some other substantial reason."

(4) Mrs Pfaffinger's dismissal was fair and reasonable within S.57(3) of the 1978 Act. Liverpool College had acted properly in negotiating with NATFHE to simplify the various grades of pay, with a substantial beneficial effect on the majority of lecturers and on Liverpool College itself, though not on Mrs Pfaffinger. There were sound business reasons for the agreement with the Union. The majority of the lecturers accepted the revised terms of employment. The dismissal of Mrs Pfaffinger for that other substantial reason was fair and reasonable. Her claims for unfair dismissal and redundancy payment therefore failed.

Mr Muller's Case

This appeal is from the unanimous decision of the Industrial Tribunal held at Reading on 23rd January 1995. The Tribunal decided that Mr Muller's redundancy claim failed, because he was not dismissed. The extended reasons for that decision were notified to the parties on 20th March 1995. A Notice of Appeal was served on 22nd March 1995. On 22nd September 1995 directions were given at a preliminary hearing in this Tribunal for Mr Muller's appeal to proceed to a full hearing.

At the substantive hearing no evidence was heard by the Tribunal. They were presented with agreed facts which may be summarised as follows:-

(1) In September 1985 Mr Muller began to work as a part-time lecturer for the predecessor of the Amersham and Wycombe College ("the Amersham College") on the first of a series of fixed term contracts.

(2) In September 1992 Mr Muller was employed on a fixed term contract as a part-time lecturer on the BTEC course (6 hours a week) and on a BHD course (5.5 hours a week). He also gave a sculpture course of 4 or 5 hours a week.

(3) The fixed term contract expired on 14th July 1993, the end of the term and the end of the academic year. The vacation started. He did not work and was not paid by Amersham College for the vacation.

(4) In September 1993 Mr Muller was offered and he accepted employment under a further fixed term contract commencing on 20th September 1993. That offer was for 5 weeks on the BHD course (5.5 hours) and on the BTEC course for 4 weeks (5 hours a week).

(5) Between 14th July 1993 and 20th September 1993 Mr Muller was not employed by Amersham College and was out of work.

(6) On 1st June 1994 Mr Muller presented an application to the Industrial Tribunal making a claim for unfair dismissal (which he later withdrew) and a claim for redundancy pay.

(7) Amersham College contested the claim in the Notice of Appearance served on 4th July 1994. Their case was that Mr Muller had not been dismissed. He had continuity of employment as a part-time lecturer in "3D" both up to and subsequent to 14th July 1993. That continuity was not broken by the expiry of his fixed term contract on 14th July 1993 because of the renewal in the week commencing 20th September 1993. His continued employment meant that he was not dismissed and was not entitled to a redundancy payment. Amersham College also took the point that Mr Muller's claim should be dismissed by virtue of S.101 of the 1978 Act, because it was out of time and it was not just and equitable to extend that time under S.101(2) "having regard to the interests of the College and the fact that Mr Muller's employment there resumed in the normal way in September 1993."

On 2nd September 1994 the Industrial Tribunal held at Reading (the Chairman sitting alone) directed that it was just and equitable that Mr Muller's claim for redundancy payment be set down for a hearing. In the Reasons sent to the parties on 19th September 1995 the Tribunal recorded that counsel on behalf of Mr Muller stated that he was not proceeding with his claim for unfair dismissal. Counsel for Mr Muller contended that, so far as his claim for redundancy payment was concerned, the date of termination of his contract of employment was 12th July 1993 and his complaint was received on 1st June 1994. In paragraph 2 of the reasons the Tribunal stated this:-

"The Tribunal considered the submission made by Mr Kibling and read the long submissions made on behalf of the Respondent by way of written representation. Due to the complex law and possible conflict of evidence as to the applicant's contract of employment the Tribunal considered it just and equitable that the application should proceed to a full hearing by virtue of S.101(2) of the Employment Protection (Consolidation) Act 1978 in so far as the application was made within 12 months of the date of termination of the applicant's employment on 12th July 1993."

In paragraph 3 of the extended reasons for the substantive decision the Tribunal said -

"Following a hearing on 2 September 1994, the Tribunal directed that it was just and equitable that the claim for a redundancy payment be set down for hearing. Counsel at that hearing stated that the applicant was not proceeding with his claim for unfair dismissal."

The Decision of the Industrial Tribunal

The Tribunal's reasons for rejecting Mr Muller's claim can be briefly stated as follows:-

(1) Mr Muller was continuously employed by Amersham College from September 1985 until July 1993 under a series of renewals. There was no change in 1993 from that long series of expiries and renewals of fixed term contracts, save that in 1993 the terms under the contract offered and accepted from September differed in some respects from the previous terms.

(2) Following expiry of his fixed term contract, Mr Muller had a right to claim a redundancy payment.

"...As long as the applicant has no employment thereafter with the respondents, but the periods of time prescribed by S.101 of the 1978 have not expired, the applicant has the right to claim a redundancy payment."

(3) Once, however, Mr Muller had been offered and accepted a fresh fixed term contract in September, his continuity of employment was preserved under paragraph 9(1)(b) of Schedule 13 of the 1978 Act and there was no actual or constructive dismissal of him in those circumstances. In paragraph 14 the Tribunal said -

"The Tribunal concluded that in the circumstances of Mr Muller's case ... there was no dismissal ... his contract having been renewed in September as it had been in similar circumstances over the preceding eight years."

(5) This meant that Mr Muller was not dismissed. As he was not dismissed, he could not claim a redundancy payment.

Finally, in paragraph 15 of the decision the Tribunal said that the application failed and that it was

"...not necessary ... to consider the question whether it would be "just and equitable" to award a redundancy payment in the circumstances contemplated by S.101."

The Law

The question common to both appeals is whether, on the expiration of their fixed term contracts as part-time lecturers, the Appellants were dismissed for redundancy. The decision of the Industrial Tribunal in Mrs Pfaffinger's case is that she was not dismissed for redundancy, but was dismissed constructively for some other substantial reason in circumstances that were fair and reasonable. The decision of the Industrial Tribunal in Mr Muller's case is that he was not dismissed for redundancy, because his employment continued under a new contract the following term. In order to decide whether these answers to the common question were legally erroneous, it is necessary to refer to the applicable provisions and to the relevant legal principles.

The relevant law is as follows:-

(1) "Dismissal" and "dismiss" are construed in accordance with the provisions of S.55 of the 1978 Act.

(b) -

"(2) Subject to subsection (3) an employee shall be treated as dismissed by his employer if, but only if, - (b) where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract ..."

(2) The relevant provisions concerning continuity of employment are contained in Schedule 13 to the 1978 Act, in particular paragraph 9(1)(b) as interpreted by the House of Lords in Ford v. Warwickshire County Council (supra). It is common ground that the effect of that decision is that a teacher employed in successive years under fixed term contracts, with periods of unemployment during vacations, has continuous employment for the purposes of claiming unfair dismissal and redundancy payments. Schedule 13 is concerned with the computation of the period of employment and paragraph 9 deals with the periods in which there is no contract of employment. It is provided that -

"...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

that week shall, notwithstanding that it does not fall under paragraph 3, 4 or 5 count as a period of employment."

In his speech in Ford v. Warwickshire County Council Lord Diplock pointed out that paragraph 9 is

"dealing only with periods which are not to be treated as interrupting a continuing period of employment under a contract of employment, notwithstanding that during the period of interruption there is in law no subsisting contract of employment". (p.282 C-E)

Later in his speech Lord Diplock rejected the contention that paragraph 9(1) was -

"...not applicable to cases where a contract of employment for a fixed term has expired and upon expiry has not been renewed by the employer." (p.282F)

He said that the correct approach was to look

"... to see what was the reason for the employer's failure to renew the contract on the expiry of its fixed term and ask oneself the question: was that reason "a temporary cessation of work" within the meaning of that phrase in paragraph 9(1)(b)." (p.283 F-G)

Finally, he said on p.285 C-E that -

"So the continuity of employment for the purposes of the Act in relation to unfair dismissal and redundancy payments is not broken unless and until, looking backwards from the date of the expiry of the fixed term contract on which the employee's claim is based, there is to be found between one fixed term contract and its immediate predecessor an interval that cannot be characterised as short relatively to the combined duration of the two fixed term contracts. Whether it can be so characterised is a question of fact and degree and so is for the decision of an Industrial Tribunal rather by the Employment Appeal Tribunal or an appellate court of law."

In these cases the Industrial Tribunal held that both Mrs Pfaffinger and Mr Muller had continuous employment for the purposes of these provisions and there is no appeal against that ruling.

(3) The relevant provisions on redundancy situations are contained in S.81 of the 1978 Act, as interpreted by the Court of Appeal in Nottinghamshire County Council v. Lee

[1980] ICR 635

. Section 81 contains general provisions as to the right to a redundancy payment.

(b) provides -

"For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to

...

(b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish."

In subsection (2) "cease" means "cease either permanently or temporarily and from whatsoever cause", and "diminish" has a corresponding meaning.

It was held by the Court of Appeal in Nottinghamshire County Council v. Lee (supra) that, in interpreting equivalent provisions in earlier legislation (the Redundancy Payments Act 1965), it was necessary to ask, in the case of a fixed term contract which expired and had not been renewed:

"Why was not the employee's contract renewed?"

If the answer was, in the case of a teacher, that there was no more work for him to do and the requirements of the school or college for teachers or lecturers had diminished and were expected to be diminished, there was a dismissal for redundancy. Lord Justice Eveleigh pointed out in his judgment at p.641 D - E -

"The fact that the failure to renew was foreseen right from the beginning in no way alters the conclusion in my view that the dismissal was attributable to the "redundancy situation".

The combined effect of the definition of "dismissal" in S.55(2)(b) and the definition of a "redundancy situation" in S.81 is that, where there is a succession of fixed term contracts which expire, there may be a dismissal for redundancy on the expiration of each contract. So, for example, where a part-time lecturer has three fixed term contracts, one for each term during the academic year, he may be dismissed three times during that year for redundancy. This may sound surprising to some but, on the present state of the authorities and the legislation, that is the position.

(4) The statutory provisions on the renewal of contracts in S.84 do not apply to the facts of this case. They deal with a situation where an employee's contract of employment is renewed or where he is engaged under a new contract of employment in pursuance of an offer made by his employer -

"...before the ending of his employment under the previous contract, and the renewal or re-engagement takes effect either immediately on the ending of that employment or after an interval of not more than four weeks thereafter. In those circumstances, subject to subsections (3) to (6) of S.84

"The employee shall not be regarded as having been dismissed by his employer by reason of the ending of his employment under the previous contract.""

The Legal Position

Applying the relevant law to the facts found by the Tribunal, we have reached the conclusion that the Industrial Tribunal erred in law in rejecting the claims made by Mrs Pfaffinger and Mr Muller that they had been dismissed by reason of redundancy. The legal position in each case is as follows.

A Mrs Pfaffinger's case

At the hearing of the appeal Mrs Pfaffinger's representative did not oppose the cross-appeal by Liverpool College and accepted that, if we decided to allow the cross-appeal, Mrs Pfaffinger's appeal should be dismissed. The essence of the cross-appeal of Liverpool College was that Mrs Pfaffinger had not been constructively dismissed on 22nd July 1993. She had been dismissed by reason of redundancy on 25th June 1993. In our judgment, the cross-appeal succeeds for the following reasons. The appeal will therefore be dismissed by consent.

(1) Mrs Pfaffinger's fixed term contract expired on 25th June 1993. The Industrial Tribunal found that as a fact.

(2) As a matter of law, the expiry of a fixed term contract is a dismissal for the purposes of claiming unfair dismissal and redundancy payments: S.55(2)(b) of the 1978 Act.

(3) There was no renewal of that contract between Mrs Pfaffinger and Liverpool College. Mrs Pfaffinger had no right under her fixed term contract to such a renewal.

(4) The reason for Mrs Pfaffinger's dismissal on the expiration of the fixed term contract on 25th June 1993 was redundancy within the meaning of S.81(2)(b) and (3). Liverpool College's need for part-time lecturers to carry out the function of part-time lecturing ceased or diminished from the beginning of the vacation at the end of June 1993 to September 1993. There was no teaching during that period. There was no need for teachers during that period. That is a "redundancy situation". Mrs Pfaffinger is therefore entitled to a redundancy payment.

(5) There was no constructive dismissal of Mrs Pfaffinger on 22nd July 1993 because, when her fixed term contract expired on 25th June, it expired and there was no contract in existence on 22nd July to be broken. All that happened that was Liverpool College offered her a new contract on less favourable terms. That was not breach of any existing contract and could not therefore constitute a constructive dismissal.

(6) These conclusions are not affected by the fact that Mrs Pfaffinger had continuous employment for the purposes of claiming rights in respect of her dismissal. The provisions of Schedule 13, as interpreted by the House of Lords in Ford v. Warwickshire County Council , are concerned with continuity of employment for the purposes of claiming breach of employment rights and redundancy payments. They do not have the effect of preventing the expiration of a fixed term contract from being a dismissal within the meaning of S.55 or prevent the circumstances of the dismissal from being a redundancy situation within the meaning of S.81.

For these reasons the cross-appeal by Liverpool College is allowed and Mrs Pfaffinger's appeal is dismissed. The result is that she is entitled to a redundancy payment, but not to compensation for unfair dismissal.

B Mr Muller's case

The legal position of Mr Muller is similar to that of Mrs Pfaffinger. We allow Mr Muller 's appeal because the Tribunal erred in law in deciding that he was not dismissed. We accept the submissions of Mr Kibling, on behalf of Mr Muller that the legal position is as follows:-

(1) It is common ground that

(a) between 14th July 1993 and 20th September 1993 there was a period of temporary cessation of work;

(b) had Mr Muller claimed a redundancy payment before he was offered and accepted a new fixed term contract in September 1993, Amersham College would have offered him redundancy payment;

(2) There was a redundancy situation on 14th July 1993 by the combined operation of S.81(2)(b) and S.91(2) of the 1978 Act.

(3) The computation of periods of continuous employment by reference to Schedule 13 of the 1978 Act cannot have the effect of converting a dismissal for redundancy into a nullity.

(4) Mr Muller did not lose entitlement to a statutory redundancy payment by returning to work for Amersham College on 20th September 1993. His right to a statutory redundancy payment flowed from his dismissal by reason of redundancy and the failure to renew the contract before the expiry of the original contract and within four weeks of the termination date (S.84).

(5) The right to the statutory redundancy payment was unaffected by the subsequent action of Mr Muller in returning to work under a new contract, save in respect of any claim that was time-barred under S.101 of the 1978 Act. On the question whether and to what extent the claim is time-barred, this matter should be remitted to the Industrial Tribunal to determine as part of the determination of the question of quantum. Mr Kibling argued that the Industrial Tribunal had already determined as a preliminary issue that it was just and equitable to extend time and that that decision was binding on the parties, is not subject to an appeal and created an issue estoppel. In our view, this is still a matter for decision by the Industrial Tribunal. When the two decisions of the Tribunal are read together (those of 2nd September 1994 and 23rd January 1995) it appears to us that the Tribunal did not consider that they had determined the question whether it was just and equitable to award a redundancy payment in the circumstances contemplated by S.101. See paragraph 15 of the extended reasons notified to the parties on 20th February 1995. That matter therefore still has to be resolved by the Tribunal. Subject to that point, Mr Muller's appeal is allowed and we remit the matter to the Industrial Tribunal to determine the question of the amount of the redundancy payment to which he is entitled.