Borkett v Workers Educational Association [1998] UKEAT 275_98_2205

EAT
Borkett v Workers Educational Association
[1998] UKEAT 275_98_2205 · 1998-05-22

JUDGE PETER CLARK :

The issue before a Chairman, Mr H R Purse, sitting alone at Stratford on 2nd December 1997, was whether the appellant, Mr Borkett, had completed two years continuous service with the respondent for the purposes of bringing a complaint of unfair dismissal.It was common ground that over a number of years, starting in 1984, the appellant gave three ten week courses as a part-time lecturer under a series of fixed-term contracts at the respondent's College until 1996, when he missed the Summer term, save for one day on 7th June, because he was called for jury service which in the event occupied the period 15th - 25th April, but had originally been anticipated as lasting for four to six weeks.It was conceded by the respondent that on every occasion when the appellant was absent from work that absence was on account of a cessation of work within the meaning of s. 212(3)(b) of the Employment Rights Act 1996 . However, it was submitted that such cessation were not temporary for the purposes of that statutory provision.The appellant's representative relied not only on s. 212 (3)(b), but also on the provisions of s.

(c) , that is that the appellant was:

"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."
In reaching his conclusions, the Chairman referred to the cases of Ford v Warwickshire County Council [1983] IRLR 126 , Sillars v Charrington Fuels Ltd [1988] IRLR 152 and Flack v Kodak Ltd [1986] IRLR 255 in coming to the conclusion that the break of 26 weeks save for one day between April and October 1996 could be not described as temporary for the purposes of s. 212 (3)(b). He then dealt with s. 212 (3)(c) in paragraph 9 of his extended reasons. That paragraph concludes with the words:
"9 ... The fact that Mr Borkett was on jury service toward the beginning of the period means that he was regarded during the period as employed by the Respondent."
We appreciate of course that we should not fine tooth-comb Industrial Tribunal Chairman's reasons for the purpose of adjudicating on an appeal which is on a point of law only. However, at this preliminary hearing stage we think it arguable that the Chairman has failed to consider whether a combination of the provisions under subsection (3)(b) and (c) allows continuity of employment in this case. If, for example, the position were that had the appellant worked as normal during the Summer term of 1996 and had that history of employment given continuity for the whole period from 1984 under subsection (3)(b) can it be said that a finding that his absence during the Summer term of 1996 fell within subsection (3)(c) is sufficient to grant him the necessary continuity of employment? It is this question currently not articulated quite in that way in the Notice of Appeal which ought to proceed to a full hearing.In these circumstances, we shall allow the matter to proceed. We grant leave to the appellant to lodge an amended Notice of Appeal for my attention within 14 days of today and I shall consider whether leave ought to be given for the Notice in its amended form.This case should be listed for half a day. Category C. Skeleton arguments to be exchanged not less than 14 days before the hearing and copies then to be lodged with this tribunal. There are no further directions.