Lythe v Hereford & Worcester County Council & Anor [1997] UKEAT 564_96_2503

EAT
Lythe v Hereford & Worcester County Council & Anor
[1997] UKEAT 564_96_2503 · 1997-03-25

JUDGE PETER CLARK :

The appellant was employed as a teacher by the respondents under a fixed term contract initially from 30th April 1992 to 31st March 1995, subsequently extended to 24th April 1995. She was dismissed on the expiry of the fixed term contract as extended, it not thereafter being renewed.She was 40 years of age at dismissal and received a redundancy payment of £363.14, being two weeks pay based on two years continuous service.She presented a complaint to an Industrial Tribunal that she was entitled to a redundancy payment based on three years continuous service, an additional £181.57.The argument presented on her behalf to the Birmingham Industrial Tribunal sitting on 29th February 1996 by her trade union representative, Mr Carter, was based on the 'Burgundy Book' , which formed part of her terms and conditions of employment. The submission advanced was that her employment ran until the statutory end of term, that is 30th April 1995, thus entitling her to receive a redundancy payment based on three years service. The tribunal rejected that submission, and held that the effective date of termination of the contract was 24th April 1995. She had not completed three years continuous service. The claim was dismissed. Extended reasons for that decision ["the substantive decision"] are dated 15th April 1996.By letter dated 22nd April 1996 Mr Carter applied for a review of the tribunal's substantive decision on the ground that the interests of justice required a review, in that under paragraph 4 Schedule 13 to the Employment Protection (Consolidation) Act 1978 (now s.212(1) Employment Rights Act 1996 ):
"4 Any week during the whole or part of which the employee's relations with the employer are governed by a contract of employment which normally involves employment for sixteen hours or more weekly shall count in computing a period of employment."
The letter continued:
"The last day of the Applicant's employment by the Respondent was 24.2.95. This was in fact a Monday and it is established that a contract of employment for the Applicant was in force on that day. It follows, therefore, that there was a contract in force in part of the working week beginning 24.2.95 which is the 52nd week of the year beginning 30.4.94 and the 156th week of the Applicant's employment by the Respondent."
That application was opposed on behalf of the respondents by letter dated 26th April 1996 in which it was pointed out that this point had not been taken at the substantive hearing and that, relying on Lindsay v Ironsides Ray & Vials [1994] IRLR 318 , the failure of a party's representative to properly argue the case at a substantive hearing would not generally constitute a ground for review.Mr Carter responded by letter dated 8th May 1996, relying on the Employment Appeal Tribunal decision in British Midland Airways v Lewis [1978] ICR 782 for the proposition that it is a ground for review that the tribunal had made a transparent error of law, and that it is not significant that the reason for the error of law was that the parties did not identify the point; it was for the tribunal to apply the law.The Chairman considered the matter and by a review decision dated 10th May 1996 summarily dismissed the application under Rule 11(5) of the Industrial Tribunal Rules of Procedure 1993. He held that it was not appropriate to review a decision on the basis of a point which was not raised at the original hearing, and further he did not accept the proposition of law now advanced.Against both the substantive decision and the review decision the appellant appealed by a Notice dated 22nd May 1996.The appeal was listed for an ex parte preliminary hearing before a division of this Employment Appeal Tribunal presided over by Judge Byrt QC. On that occasion Mr Clayton, the solicitor for the appellant, persuaded the tribunal to allow the matter to proceed to a full hearing, we see from the transcript of the short judgment given by Judge Byrt on 7th October 1996, on the ground that the question as to whether the appellant was employed for two or three years went to the jurisdiction of the tribunal, and thus he ought to be allowed to argue the new point before the Employment Appeal Tribunal; alternatively, the Industrial Tribunal Chairman ought to have granted the review application and heard the new point on a review hearing before the full tribunal. In fact, Mr Clayton tells us that this was a misapprehension on the part of the Employment Appeal Tribunal. He does not content that the new point goes to the tribunal's jurisdiction.Today we have heard full argument from the parties on three issues:(1) whether the appellant ought to be allowed to take the new point on appeal;(2) whether the tribunal Chairman erred in rejecting the application for a review under Rule 11(5); and(3) whether the statutory construction contended for by Mr Clayton is correct.We shall deal with each in turn.

New point before the Employment Appeal Tribunal

In Kumchyk v Derby City Council [1978] ICR 1116 , at 1123D, Arnold J said in relation to new points taken on appeal:
"It certainly is not enough, in our judgment, that the point was not taken owing to a wrong, or what turns out in the light of after events to have been a wrong tactical decision by the appellant or his advocate. It would certainly not be enough that the omission was due to the lack of skill or experience on the part of the advocate. It would certainly not, we think, be enough that the omission could have been made good had the industrial tribunal chosen to suggest the point for consideration to the appellant or his advocate."
An exception to the general rule that a party will not be allowed to take a new point before the Employment Appeal Tribunal was identified by Talbot J in House v Emerson [1980] ICR 795 , 800, where an Industrial Tribunal refused to accept jurisdiction. However, that exception has been further explained by Knox J in Russell v Elmdon Freight Terminal Ltd [1989] ICR 629 , 633, where his Lordship stated that not every new point going to jurisdiction will be permitted at the appeal stage, particularly where it would require further evidence and findings by the Industrial Tribunal.Mr Clayton submits that he is entitled to take the new point, where it is accepted that further evidence and findings of fact by the Industrial Tribunal are not necessary, on the authority of Castle vDG Pink Developments (Court of Appeal - EATRF - 95/0073/B 6th February 1996. Unreported) . In that case the Industrial Tribunal held that it had no jurisdiction to entertain the applicant's complaint of unfair dismissal because her hours of work had been reduced so as to prevent her qualifying for unfair dismissal protection. The point was conceded before the Industrial Tribunal by her trade union representative, having been raised initially by the Industrial Tribunal Chairman.On appeal to the Employment Appeal Tribunal Counsel for the appellant was permitted to take a new point in order to show that she had sufficient qualifying service. That course was approved by the Court of Appeal, by reference to the earlier Court of Appeal Decision in Hellyer Brothers v Mcleod [1987] ICR 526 , where no further evidence was required. Beldan LJ put the matter this way at page 11 C-G of the transcript:
"But in the present case the appellant's claim was rejected, without evidence being called, purely on the grounds that the tribunal considered that it had no jurisdiction to entertain her claim; and it was on that ground that the Appeal Tribunal upheld its decision.
The point of law now advanced, based on paragraph 7 of Schedule 13 of the Act, is not dependent upon evidence, for the facts are not in dispute. If the Industrial Tribunal wrongly declines jurisdiction on a point put forward at the instance of the chairman of the tribunal, it seems to me wrong not to allow the appellant before this court to argue that she was not precluded by the terms of the Act from making complaint. To my mind is not so much a case of the interests of justice requiring the court to consider the matter, it would be an affront to justice if it did not."In our judgment Castle raises no new principle of law. Where an Industrial Tribunal has refused to accept jurisdiction to entertain a complaint, and dismissed it without a hearing, and no further evidence is required, an applicant will normally not be prevented from arguing a new point of law on appeal which goes to that question of jurisdiction.However, in this case no question of jurisdiction arises. The issue is simply one of quantum. The claim was dismissed on the basis of the evidence and arguments presented before the Industrial Tribunal. The tribunal cannot be criticised for not raising the point now sought to be argued by Mr Clayton. There must be finality to litigation wherever possible. In our view we should not allow the new point to be argued.

The Industrial Tribunal's power to review its own decisions

The power of an Industrial Tribunal to review its own decisions in the interests of justice under rule 11(1)(e) of the Industrial Tribunal Rules of Procedure is not a general catch-all. It arises where there has been a "procedural mishap", or where the original decision had been undermined by subsequent events. Only the first could apply here, although Mr Clayton cannot point to a procedural mishap.Examples of procedural mishaps include cases where a party has not been given a fair opportunity to address the tribunal on a point of substance. Trimble v Supertravel Ltd [1982] ICR 440 ; in such circumstances it will be open to the Industrial Tribunal to grant a review, and at the review to correct an error of law in the original decision occasioned by the procedural irregularity.Similarly, it was suggested in British Midland Airways v Lewis [1978] ICR 782 that a failure by a party's representative to raise a point going to the tribunal's jurisdiction could be taken on review.However, a mere failure by a party's representative to properly argue the case on a point which did not go to the tribunal's jurisdiction is not something which can properly be corrected on review. Lindsay v Ironsides Ray and Vials [1994] IRLR 318 . It is not the duty of the tribunal to make good that failure by raising the point of its own motion.This case is on all fours with the case of Lindsay . In our judgment, the Chairman was right to dismiss the application for review on that basis.However, even had we allowed the new point to be taken, we would have rejected it for the following reasons.My Clayton bases his submission on the decision of the Employment Appeal Tribunal in Coulson v City of London Polytechnic [1976] ICR 433 . In that case the issue was whether the applicant had completed 26 weeks continuous service for the purposes of qualifying for unfair dismissal protection.In calculating the 26 weeks the Employment Appeal Tribunal looked at the definition of "week" in paragraph 4 of Schedule 1 to the Contracts of Employment Act 1972 , and applied that definition so as to count as a full week those weeks in which the employment began and ended. Thus, a period of employment which amounted to 24 weeks on the calendar basis became 26 weeks under the continuity provisions. The applicant qualified for unfair dismissal protection.Further, in obiter remarks to be found at page 438C-F of the report, Phillips J applied the same approach to the calculation of continuous service for the purposes of qualifying for and calculating a redundancy payment.Applying that approach, Mr Clayton submits that in the instant case the appellant has completed 156 weeks continuous service and is entitled to the extra weeks redundancy payment based on three years service.However, since Coulson was decided the method of calculating years has been altered by the Employment Act 1982 .Those amendments were contained in s.151 of the Employment Protection (Consolidation) Act 1978 and are now to be found in s.210 Employment Rights Act 1996 .S.210 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.
(2) In any provision of this Act which refers to a period of continuous employment expressed in months or years-(a) a month means calendar month, and(b) a year means a year of twelve calendar months.(3) In computing an employee's period of continuous employment for the purposes of any provision of this Act, any question-(a) whether the employee's employment is of a kind counting towards a period of continuous employment, or(b) whether periods (consecutive or otherwise) are to be treated as forming a single period of continuous employment,shall be determined week by week; but where it is necessary to compute the length of an employee's period of employment it shall be computed in months and years of twelve months in accordance with section 211."In our judgment s.210(3) draws a distinction between periods of time which, under the Act, are to be calculated in weeks and those which are to be calculated in months or years.Thus by s.212:
"(1) Any week during the whole or part of which an employee's relations with the employer are governed by a contract of employment counts in computing the employee's period of employment.
...(3) Subject to subsection (4), any week (not within subsection (1)) during the whole or part of which an employee is-(a) incapable of work in consequence of sickness or injury,(b) absent from work on account of a temporary cessation of work,(c) absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for any purpose, ord) absent from work wholly or partly because of pregnancy or childbirth,counts in computing the employee's period of employment.(4) Not more that twenty-six weeks count under subsection 3(a) or (subject to subsection (2)) subsection 3(d) between any periods falling under subjection (1).However, s.162 of 1996 Act provides:
"(1) The amount of a redundancy payment shall be calculated by- (a) determining the period, ending with the relevant date, during which the employee has been continuously employed, (b) reckoning backwards from the end of that period the number of years of employment falling within that period, and (c) allowing the appropriate amount of each of those years of employment."
S.145 of the 1996 Act provides:"(1) For the purposes of the provisions of this Act relating to redundancy payments "the relevant date" in relation to the dismissal of an employee has the meaning given by this section.

(2) Subject to the following provisions of this section, "the relevant date"-

...(c) in relation to an employee who is employed under a contract for a fixed term which expires without being renewed under the same contract, means the date on which the term expires."S.211 of the 1996 Act provides:
"(1) An employee's period of continuous employment for the purposes of any provision of this Act- (a) (subject to subsections (2) and (3)) begins with the day on which the employee starts work, and (b) ends with the day by reference to which the length of the employee's period of continuous employment is to be ascertained for the purposes of the provision."
In our judgment the statutory regime is clear. The calculation of entitlement to a redundancy payment is by reference to the relevant date, that is in this case the expiry date of the fixed term contract, and then to reckon backwards to see how many years of employment fall within the period starting with the day on which the employee started work. Each year must be a year of 12 calendar months. On that basis the appellant failed to complete three years continuous service.It is not permissible to attempt the calculation on the basis of 156 weeks applying the principles laid down in Coulson . That approach was changed by the Employment Act 1982 . Thus the reasoning in Coulson is simply immaterial to the method of calculation required in this case.In these circumstances we reject the construction advanced by Mr Clayton, and had we entertained the new point in this appeal, we should have dismissed it on its merits.Accordingly the appeal must be dismissed.