Morris v Walsh Western UK Ltd [1997] UKEAT 148_97_1804

EAT
Morris v Walsh Western UK Ltd
[1997] UKEAT 148_97_1804 · 1997-04-18

JUDGE PETER CLARK :

This is an appeal by the employee, Mr Morris, against a decision of the Regional Chairman, Mr M E Woods, sitting alone at Bristol on 7th January 1997, that he had not completed two years continuous service for the purpose of bringing a complaint of unfair dismissal against his former employers, Walsh Western UK Ltd. Extended reasons for that decision are dated 10th January 1997.

The facts

The appellant commenced employment on 7th February 1994 with the respondent's predecessor as a driver. On 20th August 1994 his employment was transferred with the business in which he worked to the respondent. On 9th April 1996 he was summarily dismissed.The issue in this case concerns a break in employment between 9th April 1996 and 7th May 1996 when he was re-employed ["the period of absence"]. Ultimately, he claims, he was unfairly constructively dismissed on 5th July 1996.The Chairman found that after he was re-employed on 7th May 1996 the appellant was told by Mrs Perkins, the respondent's general manager, that the period of absence was to be treated as a period of unpaid leave. On this aspect the Chairman preferred the appellant's evidence to that of Mrs Perkins.He also found, accepting Mrs Perkins' evidence, that the appellant had been re-employed on 7th May 1996 not because she thought that he had been unfairly dismissed but because a supervisor, who she felt could not cope with the appellant, had been replaced by a new supervisor who could deal with him.

The decision

The Chairman considered that the period of absence, during which there was no contract of service governing the employee's relations with his employer ( Employment Rights Act 1996 s.212(1)), could only count as continuous service under the provisions of s.212(3)(c) which provides:
"(3) Subject to subsection (4), any week (not within subsection (1)) during the whole or part of which an employee is-
. ..(c) absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing employment of his employer for any purpose,. ..

counts in computing the employee's period of employment."

Having considered that provision, the provisions of the Employment Protection (Continuity of Employment) Regulations 1993 ["the 1993 Regulations"] and the decisions of the Employment Appeal Tribunal in Murphy v A Birrell & Sons Ltd [1978] IRLR 458 and Ingram v Foxon [1984] ICR 685 , he concluded that Foxon was distinguishable on the grounds that here the appellant was not re-employed by the respondent because they recognised that he had been unfairly dismissed on 9th April 1996; that the appellant could not rely upon an ex post facto arrangement to treat him as being reinstated without a break in employment; that continuity was therefore broken during the period of absence and he could not show two years qualifying service.

The Appeal

In a recent undated letter the appellant has informed us that he is unable to attend this preliminary hearing, but asks us to consider his written representations. That we have done.The thrust of his case is that he was not properly dismissed on 9th April 1996, since no disciplinary procedure was followed; he was never given any warnings, and he received no written reasons for dismissal, therefore there was no break in continuity.In his grounds of appeal he contends that he regarded his dismissal on 9th April 1996 as wrong, but did not make an Industrial Tribunal complaint because he was taken back into employment on the same terms and conditions as before, and his absence was treated as unpaid leave.

Conclusion

In our judgment:(1) Murphy v Birrell is authority for the proposition that an arrangement contemplated by s.212(3)(c) - there was no custom in this case - cannot be made after the period of absence. Further, we think that must be right. As a matter of construction the statutory provision envisages that the arrangement is in place when he is absent from work, not afterwards.(2) Ingram v Foxon was decided without the benefit of full argument. Both parties were unrepresented. In particular, the Employment Appeal Tribunal was not referred to the decision of the House of Lords in Secretary of State for Employment v Globe Elastic [1979] ICR 706 , which drew attention to what is now s.210(1) of the Employment Rights Act 1996 which provides:
"(1) References in any provision of this Act to a period of continuous employment are (unless provision is expressly made to the contrary) to a period computed in accordance with this Chapter."
Continuity is a creature of statute. Unless continuity can be shown under the provisions of what is now Chapter 1 of Part XIV of the Employment Rights Act 1996 , continuous employment is not made out.In Foxon , Balcombe J said this at 687E-F:
"The computation of a period of employment is governed by the provisions of Schedule 13 to the Act of 1978. Paragraph 1(1) of that Schedule provides that, except so far as otherwise provided by the Schedule, a week which does not count under paragraphs 3 to 13 breaks the continuity of the period of employment. The only relevant paragraph in the circumstances of the present case is paragraph 9(1)( c ) [ now s.212(3)(c) ]. However, before we consider the provisions of that paragraph, it is necessary to consider the provisions of paragraph 4 and the Labour Relations (Continuity of Employment) Regulations 1976 (S.I. 1976 No. 660), from which it is apparent that if, in August 1981, the employee had made a complaint of unfair dismissal to the industrial tribunal, and had then been reinstated, even without an adjudication by the industrial tribunal;, his continuity of employment would have been preserved. It would be very odd result if, in order to preserve his continuity of employment, the employee had to make an application to the industrial tribunal, even though Mr Lomas was prepared to concede reinstatement without the necessity of such an application."
In our view that is not permissible. If the case falls within the successor to the 1976 Regulations, that is the 1993 Regulations, then continuity is made out for the purposes of s.210(1) because "provision is expressly made to the contrary". However, the facts of Foxon were not covered by the 1976 Regulations, as Balcombe J recognised, and thus, applying the reasoning in Murphy , the applicant was not continuously employed during the period of absence. Similarly, in this case, the appellant is not covered by the provisions of the 1993 Regulations. In particular, he was not reinstated or re-engaged on 7th May 1996, even if it were permissible to take into account the subsequent agreement that his period of absence should be treated as unpaid leave. Reinstatement or re-engagement requires that he be paid for the period between dismissal and reinstatement or re-engagement. He was not. Further, none of the circumstances listed in Regulation 3(1) of the 1993 Regulations applied.(3) It follows that the Chairman was correct in concluding that the period of absence amounted to a break in continuity and that the Industrial Tribunal had no jurisdiction to consider this complaint.Accordingly, the appeal is dismissed.