Caines v Hamon-Lummus Ltd [1996] UKEAT 867_95_1101

EAT
Caines v Hamon-Lummus Ltd
[1996] UKEAT 867_95_1101 · 1996-01-11

JUDGE CLARK :

This is an appeal by the employee, Mr Caines, against a unanimous decision of the Hull Industrial Tribunal sitting on 24th May 1995 that he had not completed two years continuous employment with the Respondent for the purposes of founding a complaint of unfair dismissal arising out of his summary dismissal on 17th February 1995.The factual background to the Industrial Tribunal's decision is as follows:The Appellant was employed by an employment agency, Daniel Bates Partnership (Bates). Between 5th April 1992 and 5th April 1993 his services were contracted out by Bates to ABB Lummus Heat Transfer UK (ABB). The tribunal record, at paragraph 4 of their reasons dated 4th July 1995, that it was accepted on behalf of the Appellant that during that one year period he was employed by Bates and not by ABB. Having seen the contractual invoices passing between Bates and ABB during that period we think that concession was properly made, and Mr Caines has confirmed that position to us today.In March and early April 1993 the Appellant entered into negotiations for him to be employed in the Respondent company which was set up as a joint venture vehicle involving ABB and a company called Hamon SOBELCO. Those negotiations concluded with his appointment as Deputy Plant Manager by the Respondent at their Hull facility.The letter of appointment dated 6th April 1993 provides that the employment began on 5th April and contains these words:
"For correcting the number of service years your period worked through the agency shall be taken into account."
That letter was followed by a written Statement of Terms and Conditions of Employment signed by the Appellant and on behalf of the Respondent, on 30th June 1993. In that statement the Date of Commencement of Employment is given as 5th April 1993. However, Clause 15 provides:

"15. Seniority

You will be considered as having a seniority of 12 months at the date of 5 April 1992."The argument advanced before the Industrial Tribunal on behalf of the Appellant was that the effect of the contractual documentation was to provide for continuity of employment starting on 5th April 1992.The tribunal appears to have accepted the construction of the contract contended for by the Appellant. At paragraph 8 of their reasons they say:
"On balance the Tribunal accepts that the intention of the amendments that were specifically at the behest of the applicant were such as to grant him certain additional contractual rights, and therefore would accept the applicant's interpretation of the intention of the provisions of that wording that was incorporated."
However, the tribunal go on to hold that the issue of the period of continuous employment with the Respondent may only be decided by reference to the statutory provisions contained in the relevant parts of the Employment Protection (Consolidation) Act 1978 . They referred in particular to Section 151(3) of the Act which provides:
"(3) Subject to the following provision of this section, an employee's period of continuous employment for the purposes of any provision of this Act begins with the day on which he starts work and ends with the day by reference to which the length of his period of continuous employment falls to be ascertained for the purposes of the provision in question."
and by reference to the decision of this tribunal in General of the Salvation Army v Dewsbury [1984] ICR 498 the tribunal concluded that the commencement date for the purposes of continuity of employment is the date on which he began employment with the Respondent under his contract of employment. That date, in this case, was 5th April 1993.Accordingly, the tribunal found, the Appellant had not completed two years continuous service with the Respondent by the time he was dismissed on 17th February 1995. His application was dismissed.By his Notice of Appeal dated 11th August 1995 settled by Counsel, the Appellant indicated two separate grounds of appeal to this tribunal as follows:
"(i) the Industrial Tribunal ought to have decided that an agreement between the Appellant and the Respondent that the Appellant's employment would be treated as commencing on 5th April 1993, was effective and enabled the Appellant's continuity of employment for the purpose of Section 64 of the Employment Protection (Consolidation) Act 1978 to be calculated from April 1992, or
(ii) the Industrial Tribunal ought to have decided that such an agreement gave rise to an absence from work in circumstances such that, by arrangement, the Appellant was regarded as continuing in the employment of the Respondent for all or any purposes between April 1992 and 5th April 1993 and that accordingly the Appellant's continuity of employment ought to be calculated from April 1992 by virtue of Schedule 13, paragraph 9(1)(c) of the Employment Protection (Consolidation) Act 1978."The Appellant has appeared in person before us, and now formally abandons the second ground of appeal which raises a wholly new point.We are therefore concerned only with the first ground of appeal.We shall assume, without deciding that the tribunal found, and found permissibly, that the contract of employment made between the Appellant and the Respondent provided for his period of employment with the Respondent to start on 5th April 1992. We emphasise that this is an assumption, since the point is not free from doubt.On that assumption, was the tribunal wrong to conclude that such an agreement was immaterial to the question of continuity under the Act? In our judgment, it was not.Section 151(1) of the Act provides:
"(1) References in any provision of this Act to a period of continuous employment are, except where provision is expressly made to the contrary, to a period computed in accordance with the provision of this section and Schedule 13; ..."
Mr Caines contends that the exception applies to provisions made in a contract of employment. As a matter of construction we cannot accept that submission. In our judgment the reference to express provision to the contrary means provision in the Act, and not provision in any contractual agreement made between employer and employee.Any doubts as to that proposition raised by the Court of Appeal decision in Evenden v Guildford City A.F.C. [1975] ICR 367 were removed by the House of Lords in Secretary of State for Employment v Globe Elastic Thread Co. Ltd. [1979] ICR 706 . See per Lord Wilberforce at page 711C - 712B.In the light of our construction of Section 151(1) of the Act it is unnecessary for us to consider the alternative submission advanced by Mr Napier in relation to Section 140 of the Act.We look first at Section 151(3). In our judgment the Industrial Tribunal correctly applied that sub-section, in the light of the Dewsbury case, in concluding that the Appellant started work with the Respondent on 5th April 1993.The only way, it seems to us, in which the Appellant could count his earlier service between 5th April 1992 and 5th April 1993 is if it fell to be counted as continuous under the provisions of Schedule 13 to the Act.It appears that ABB may have been an "associated employer" of the Respondent within the meaning of Section 153(4) of the Act, and thus had the Appellant been employed by ABB, and not Bates, during the twelve month period commencing on 5th April 1992, he would then have been entitled to count that service as continuous by virtue of the provisions of Schedule 13 paragraph 18. However, he was never employed by ABB, and Bates was not an associated employer of the Respondent.Accordingly, we reject this ground of appeal, and it follows therefore, the second ground having been abandoned, that this appeal must be dismissed.