Borkett v Workers Educational Association [1999] UKEAT 275_98_0103

EAT

Borkett v Workers Educational Association

[1999] UKEAT 275_98_0103 · 1999-03-01

JUDGE PETER CLARK:

The first issue in this case for the Chairman, Mr H R Purse, sitting alone at Stratford on 2 December 1997, was whether the Appellant, Mr Borkett had two years' continuous service entitling him to bring a claim of unfair dismissal against the Respondent, Workers Education Association London District, at the effective date of termination of his employment which, on his case, was 10 May 1997. It was the Respondent's case, that his employment ended on 10 December 1996, and that accordingly his Originating Application presented on 10 March 1997 was out of time. The Chairman did not find it necessary to decide that limitation point, in view of his findings on the continuous service point.

We begin with the Chairman's findings. He promulgated his decision with Extended Reasons on 10 December 1997, (the original reasons). However, by a certificate of correction dated 3 February 1998 the Chairman amended the original reasons by the addition of the single word 'not' in the penultimate line of paragraph 9 of the original reasons, (the corrected reasons). That simple correction wholly altered the effect of this finding in paragraph 9.

Unfortunately, when this appeal came before a division of the Appeal Tribunal on which I sat on 22 May 1998 for a preliminary hearing, we were provided with the original, but not the corrected reasons. We are satisfied that Mr Hart, who then appeared on behalf of the Appellant under the ELAAS pro bono scheme was similarly provided with the original reasons only. It appears that Mr Borkett did not alert Mr Hart to the fact that corrected reasons had been promulgated on 18 February 1998. As a result the case was allowed to proceed to this full hearing on a false basis.

This misconception was pointed out by the Respondent's solicitors in a letter marked for my attention dated 15 June 1998. Further correspondence followed and in the event I directed that the case proceed to a full hearing, rather than incur further expense to the parties by holding an inter partes directions hearing. We shall return to the significance of the material correction later in this judgment.

The facts were not in dispute and may be shortly stated, first from the Chairman's reasons. The Appellant worked for the Respondent from 1984 as a part-time lecturer. This involved him giving a number of courses in three ten week terms each year. In respect of each course in each term he was given a written contract which set out the period of the course in that term, a description of the duties, the place of work and stated in each case that any prior employment with the Respondent was not regarded by it as forming part of any period of continuous employment. Mr Borkett, therefore, worked 30 weeks in each year until 1996.

In 1996 the Appellant was called for jury service and served from 15 April until 25 April. In consequence he did not give the courses which he would otherwise have given in the summer term. In that term he in fact worked for the Respondent for just one day, that being the 7 June 1996. That meant that from the end of the spring term until the beginning of the autumn term the Appellant did no work for the Respondent, except that one day. That was a period of 26 weeks and in 1996 the Appellant in fact worked for the Respondent for a total of 20 weeks.

We should add a little further detail, by agreement between the parties, from the material which was before the Chairman. During 1996, the Appellant provided two overlapping courses between 26 January and 4 April. He would then normally have provided courses during the summer term, after the Easter break, from about the beginning of May until the beginning of July. Instead, as a result of his jury service interfering with his availability during the summer term, he worked only on 7 June. He resumed work again on 8 October and continued working until 10 December 1997.

On those facts the Chairman found:

(1) that the breaks in employment during the last two years of employment, whether the effective date of termination was taken as 10 December 1996 or 10 March 1997, did not amount to a temporary cessation of work within the meaning of s.212(3)(b) of the Employment Rights Act 1996 , the emphasis here being on the word "temporary"; and

(2) that the break during the summer term of 1996 was not an absence from work in circumstances such that by arrangement or custom, the Appellant was regarded as continuing in the employment of the Respondent for any purposes, s.212(3)(c).

It is in relation to that second finding that the Chairman's correction arose.

Paragraph 9 of the corrected reasons reads:

"9. In order to come within Section 212|(3)(c) of the 1996 Act it has to be shown that, "by arrangement or custom, [the Applicant] is regarded as continuing in the employment of his employer for any purpose." On the facts put forward in this case, I do not consider that Mr Borkett was regarded as continuing in the Respondent's employment for any purpose during the period of absence from April to October 1996. The fact that Mr Borkett was on jury service toward the beginning of the period does not mean that he was regarded during the period as employed by the Respondent."

The word "not" in the final sentence of that paragraph was omitted in the original reasons.

The point on which the appeal was allowed to proceed, based on the original reasons, was that by a combination of s.212(3)(b) and (c), the Chairman's apparent finding that the fact that the Appellant was on jury service at the beginning of the summer term meant that he was regarded during that period as employed by the Respondent, might give rise to a finding of continuity. In fact, the Chairman found that the summer period was not covered by a custom or arrangement for the purposes of s.212(3)(c).

Undeterred, Mr Hart who again appears on behalf of the Appellant today, submits that the Chairman's finding that there was no custom providing for a continuation of the employment during that period was a perverse finding. He does not advance that submission as to the finding that there was no arrangement within the meaning of s.212(3)(c).

He relies on the observation of Morison J in Booth v United States of America

[1999] IRLR 16

at paragraph 10 where the President made this general comment in the context of that case, dealing with deliberate breaks in service by the employer to avoid continuity under the Act:

"A custom does not we think, have to be a custom of the trade but rather a custom in the sense of custom and practice, as commonly understood by those dealing with industrial relations."

Based on that observation, Mr Hart submits that it is widely accepted throughout industry that wherever an employee is called up for jury service, an obligation which must be complied with under the Juries Act 1974 , unless good reason for being excused is made out, it is plainly understood that his employment will continue. That was the only tenable conclusion, he submits, to be drawn by the Chairman in this case.

In response, Mr Cavanagh points out that s.212(3) is concerned only with weeks in which there is no contract of employment. In the ordinary case, an employee called up for jury service will continue to be employed under a contract of employment. This case is unusual in that the contract had ceased at the end of the spring term and the parties did not enter into a new contract in the summer term by reason of the Appellant's jury service. There was no evidence before the Chairman as to custom generally, or within the Respondent. The question here is purely one of construction of the Act, see Booth paragraph 15. It is not a question of fairness. If there is a deficiency, it is for Parliament not the Courts to put it right. In these circumstances it is not open to this Appeal Tribunal, Mr Cavanagh submits, to conclude the Chairman's finding that there was no custom that the Appellant was to be regarded as continuing in the employment during the summer period was perverse in the legal sense.

With some reluctance, since we are not happy to find that the Appellant has potentially lost his continuity of service as a result of performing his public duty on jury service, we feel driven to conclude that Mr Cavanagh is correct. There are no grounds in law for interfering with the Chairman's findings in paragraph 9 of the corrected reasons. That being the only point advanced in this appeal it must fail. Consequently it is not necessary for us to consider the further arguments which Mr Cavanagh was ready to deploy had we taken a different view on this first argument. Accordingly, the appeal is dismissed.