MR M J MCGUIRE v INITIAL DEBORAH SERVICES LTD [2000] UKEAT 1464_98_2011

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1464_98_2011Case No Appeal No. EAT/1464/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M J MCGUIREAPPELLANTINITIAL DEBORAH SERVICES LTDRESPONDENT
Before
Mr Justice Bell Mr D J Hodgkins Cb Mr G H WrightDate 20 November 2000
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents MR HENRY PITCHERS (of Counsel) Messrs Gosschalks Queen's Gardens Hull HU1 3DZ MR JUSTICE BELL : This is Mr McGuire's appeal against the decision of the Employment Tribunal held on 13th October 1998 at Bristol and promulgated on 12th November 1998 that Mr McGuire did not have the two years continuous qualifying service which was required at the relevant time to give the tribunal jurisdiction to entertain his complaint of unfair dismissal. Mr McGuire began employment with the respondent in January 1996 and his employment ultimately terminated on 15th May 1998. But the respondent contended that there was a break of more than week between 4th October 1996 and 28th October 1996 in the continuity of his employment. The Employment Tribunal in effect upheld that contention and stayed the proceedings.[2]The matter has been before this tribunal at preliminary hearings on no less than three occasions and as a result of the directions which were given by our colleagues on those occasions we have much more information about what appears to have happened at the tribunal hearing.[3]Mr McGuire's amended Notice of Appeal raises a large number of points about the hearing where he contends that matters were less than satisfactory. We do not propose to go through all those matters.[4]As the hearing has developed this morning, one matter has increasingly troubled us. The background to it is that under section 210(5) of the Employment Rights Act 1996 a person's employment during any period shall, unless the contrary is shown, be presumed to have been continuous. That puts the burden upon an employer to show that it has not been continuous for the requisite period for the purposes of the Act. But obviously whether the employer is able to discharge that burden depends to some extent on what the employee actually puts forward against the employer's case. Section 212(3) of the Act, in so far as it is relevant, provides as follows:
"… any week during the whole or part of which an employee is- … (b) absent from work on account of temporary cessation of work, or (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, … counts in computing the employee's period of employment."
[5]Part of Mr McGuire's submission today is that there was a practice with his employer that there were a number of temporary workers who worked from time to time for the respondent and were on standby for periods long or short when they were not actually given work, but were on the pay roll. Mr McGuire was employed from January to October 1996. He was laid off by Mr Lasseter at the end of September 1996. He was given a P45 but he was not given any letter terminating his employment or making it clear that the respondent considered his employment to be at an end. Mr McGuire says that he took no notice of that as he thought there would be other work and that he would be given other work as other employees who worked from time to time on a temporary basis were. In fact he was given a specific task at the end of September 1996 to collate information concerning a health and safety project. He did some work collating that information in October over the period when the respondent contends that the continuity of his employment was broken. He did not think it fair to charge a basic weekly pay for that, because he had not done 37½ hours which was his basic week, he had just come in and done some hours on one day and some on another from time to time. So he thought it was only fair to charge for actual hours he had done. From the end of October onwards he did work 37½ hours per week and in due course he was paid for work which he had done in October, although it appeared on his payslip as overtime, 30 hours in all, rather than what we will describe as standard work.[6]The tribunal considering what Mr McGuire's status or lack of it had been during the relevant period of time during October found that Mr McGuire had simply helped his wife, because he had nothing else to do and that his wife made sure that he was paid for that work, hence the reference to 30 hours overtime.[7]If the matter rested there, and that Mr McGuire had put his case to the tribunal as he now contends it to be, the matters which we canvassed so far might not found any good ground of appeal against the tribunal's decision. The tribunal's decision might well be judged to be one to which it was entitled to come. But Mr McGuire says that he felt inhibited from putting forward his full case as to the practices of the respondent so far as the continuation of work of employees who had been laid off one job and were then called back into another were concerned, by an exchange with the Chairman at the beginning of his, Mr McGuire's, evidence. Mr McGuire says that when he started to give his evidence, he asked whether he had to keep to the relevant dates, namely 4th to 28th October 1996. He says that the Chairman said yes he did have to keep to those dates. He asked again and the Chairman repeated his answer. Whether or not that is an accurate recollection of just what happened, it is difficult for us to say. The Chairman cannot help with any certainty. However, Mr Pitchers, counsel for the respondent, has had his notes transcribed. His notes of Mr McGuire's evidence-in-chief start like this:
"[unreadable] I have to stick to period of time from 4th to 28th October [possibly a question, in fairness]. I would like to go back to the date I first joined the Company. I have worked during period of time."
Mr Pitcher's note of what Mr McGuire then went on to recount in his evidence starts with 9th October 1996. That is within the bracket of 4th to 28th October. In the light of that note we consider that there is a real risk or possibility that there was an entirely innocent misunderstanding between Mr McGuire and the Chairman. Mr McGuire had evidence which he wished to put forward as to the practices of this particular company, founded on how they treated various employees who worked and then stopped work and then came back to work from time to time, but when he got the impression, to put it at its lowest, that he had to stick to the 4th to 28th October, he thought he was not entitled to rely upon those matters.[8]We do not believe that the Chairman intended to exclude any evidence which might have been of relevance. We think it far more likely that he just did not realise, and it was perfectly understandable of him not to do so in our view, that Mr McGuire had in mind the kind of case which we have, albeit very generally and briefly, summarised.[9]We are left with the feeling that there is a real basis in this case for feeling that quite inadvertently Mr McGuire was excluded from bringing forward a matter which might have helped him in relation to the possible application of section 212(3)(b) and/or (c) in the circumstances of this particular case. If he was so excluded without any real fault of his own, bearing in mind that he is a man who was representing himself and had no previous experience of Employment Tribunal proceedings, we think that there was an irregularity which deprived him of a fair hearing of his case. We would like to stress that we do not suggest for a moment that that was the result of any subjective unfairness on the part of the Chairman or any member of the tribunal, but the effect of what might have happened may have been to render the proceedings unfair. There is a real risk or possibility that the tribunal proceedings were in fact unfair.[10]In the light of that conclusion, we propose to allow the appeal against the decision of the tribunal and remit the matter for a rehearing. We think it better in all the circumstances that the matter be reheard by a tribunal which is differently constituted so that they can consider all the matters which might be relevant to the question of continuity of employment afresh.[11]With regard to directions, witness statements of the witnesses whom either side proposes to call at the new hearing are to be exchanged within six weeks. The same provision is made with regard to documents upon which the parties propose to rely. The paginated bundle of documents is to be agreed if possible within 21 days thereafter. Obviously either side can apply to the Employment Tribunal for any further directions. The further hearing is to be held not sooner than 14 days after the agreement of the bundle in accordance with the directions we have given.