Shelton v Electronic Data Systems Ltd [1998] UKEAT 615_97_1903

EAT
Shelton v Electronic Data Systems Ltd
[1998] UKEAT 615_97_1903 · 1998-03-19

JUDGE PETER CLARK :

This is an appeal by the Applicant before the Shrewsbury Industrial Tribunal Chairman, Mr D P Thompson sitting alone on 4 February 1997, against that Chairman's decision that she had not completed two years' continuous service so as to qualify for unfair dismissal protection. Extended reasons for that decision were dated 19 March 1997.It was common ground between the parties that the Appellant's employment with the Respondent ended by dismissal with effect from 9 August 1996. The Appellant contended that her period of continuous employment began on 1 March 1993, the Respondent contended for 20 March 1995.The factual background was that the Appellant commenced employment with the Inland Revenue under a short term contract on 1 March 1993. There was then a break from 23 March to 1 April 1993 when she recommenced work under a further short term contract which was from time to time extended until 28 February 1995. There was then a 19-day break until 20 March 1995, when she commenced employment under a permanent contract, which continued until termination on 9 August 1996. On 1 January 1996 her employment transferred from the Inland Revenue to the Respondent.Accordingly, the critical question was whether or not the Appellant could bridge the 19-day gap between 28 February and 20 March 1995. That was a period of more than one week during which there was no contract of employment which, subject to the presumption of continuity under s.210(5) of the Employment Rights Act 1996 and the provisions of s.212(3), broke continuity by virtue of s.210(4).Two principal questions arose for determination:(1) Was the Appellant during the relevant period absent from work on account of a temporary cessation of work (s.212(3)(b)), or(2) was she absent from work in circumstances such that, by arrangement or custom, she was regarded as continuing in the employment of the Respondent for any purpose?The Chairman answered both questions in the negative. As to the first, he found that there was no cessation of work for the Applicant to do, on her own evidence; secondly, he found that there was no evidence to support an arrangement or custom under s.212(3)(c). Accordingly, he dismissed her complaint.Leave having been given for the Appellant's case to proceed to a full hearing, the matter comes before us today for determination. Yesterday afternoon the Appellant, who represents herself, telephoned these offices to inform the Tribunal that she was unwell but at the same time making it clear that if she felt unfit to attend this morning then she was content that the appeal be determined on the papers. She submitted a skeleton argument in advance of the preliminary hearing held on 8 October 1997 and has submitted a further skeleton argument with attachments for the purposes of this hearing.This morning nothing further was heard from the Appellant. The Respondent appears today through Counsel, Mr Weisselberg. We have to balance the interests of both parties in deciding whether or not to proceed with this appeal in the absence of the Appellant. Mr Weisselberg urges to proceed today in order to save expense for the Respondent. Taking that factor into account and the Appellant's own wish that the matter should proceed on the papers today we have taken that course and have heard oral submissions from Mr Weisselberg supplementing his skeleton argument and have taken into account the Appellant's notice of appeal and her two skeleton arguments to which we have referred.Essentially there are three potential grounds of appeal. We shall deal with each in turn.The first is a complaint raised in both the notice of appeal and her first skeleton argument, which was put before the Tribunal at the preliminary issue hearing, to the effect that the Chairman prevented her from adducing evidence as to the employment position prior to the break in employment in 1995. We think the answer to that complaint is contained in the reasons given by the Chairman for dismissing her application for a review of his original decision, those reasons having been promulgated on 2 May 1997. In paragraph 4 of those reasons, he says this:
"It is not true to say that the Tribunal 'directed' the Applicant in the way that is alleged. At the commencement of the hearing, there was a discussion between the parties and the Chairman as to the issues to be dealt with, and it was agreed that it was necessary for the parties to concentrate on the two year period ending with the effective date of termination of the Applicant's employment on 9 August 1996."
We accept the Chairman's account of what happened below, which accords with Mr Weisselberg's instructions. Further, we note from the extended reasons for the substantive decision that in paragraph 1 the Chairman sets out the employment history, starting on 1 March 1993 and plainly had it in mind when reaching his original decision. In these circumstances we can see no error of law disclosed in the first ground of appeal.The second issue is whether or not the Chairman fell into error in finding that there was no temporary cessation of employment during the relevant 19-day period. As we understand his reasoning, he was not concerned with the question of whether the break was "temporary" but whether or not there was a cessation of work for the Applicant to do. It was plain on her evidence, and he so found, that there was not; in these circumstances, it seems to us, the Chairman was entitled to conclude that the Appellant was not entitled to rely on the provisions of s.212(3)(b).The third and final point relates to the Appellant's contention under s.212(3)(c) that there was an arrangement or custom by which she was to be regarded as continuing in the employment of the Respondent during the 19-day period. The difficulty with that submission is the clear and unequivocal finding by the Chairman in paragraph 9 of his original decision and reasons:
"There was no evidence to support the contention that there was any arrangement or custom in accordance with section 212(3)(c)."
That was a finding of fact which can only be challenged by reference to the Chairman's notes of evidence and a clear indication that there was evidence to support that contention. The Chairman's notes are not before us and in the circumstances we can see no grounds as an appellate tribunal for interfering with that finding of fact.In these circumstances we have reached the conclusion that none of the grounds of appeal advanced by the Appellant succeed and, accordingly, this appeal must be dismissed.