MISS HALL v SHEFFIELD AREA HEALTH AUTHORITY [2001] UKEAT 0278_01_0309

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0278_01_0309Case No Appeal No. EAT/0278/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS HALLAPPELLANTSHEFFIELD AREA HEALTH AUTHORITYRESPONDENT
Before
Mr Recorder UnderhillDate 3 September 2001
[1]APPEARANCES For the Appellant MR NIGEL PORTER (Of Counsel) Instructed by: Messrs Beachcroft Wansbroughs Solicitors 241 Glossop Road Sheffield S10 2GZ MR RECORDER UNDERHILL QC This is the preliminary hearing of an appeal against the decision of an Employment Tribunal sitting at Sheffield dismissing the Appellant's claim for unfair dismissal on the ground that she had insufficient service.[2]The essential facts giving rise to the issue are as follows: (1) By letter dated 24 February 1999 the Appellant was offered employment by the Respondents, Sheffield Health Authority, as the Chief Executive of the Primary Care Group for South East Sheffield ("PCG(SE)"). She was at that time the Director of Finance at Rampton Hospital Trust in Nottinghamshire. The letter of 24 February from Vicki Sheil, Personnel and Training Manager of the Respondents starts:
" Appointment of Chief Executive to PCC (SE) Further to your recent interview and our subsequent telephone conversation, I am pleased to confirm the offer of the above appointment on a 2 year rolling contract. Your salary on commencement will be £43,000 per annum. Please let me have your acceptance of this post in writing, confirming your start date. A Statement of the Main Particulars of the Contract of Employment will then be issued to you. I include an extract of this document as it relates to pay."
And a passage related to that follows. (2) By letter dated 31 March 1999 the Appellant accepted that offer. The letter so far as relevant reads as follows: "APPOINTMENT – CHIEF EXECUTIVE TO SOUTH EAST PCG I am delighted to accept the position of Chief Executive to the South East PCG as referred to in your offer of appointment letter dated the 24 February 1999. I have already commenced attending certain key events and from April will be available to work for up to 2 days per week for the PCG. This will continue until the 20 May 1999, which will be my official full time start date. Arrangements have been made for the cost of my time and any additional travel costs incurred during this period to be recharged by Rampton Hospital Authority to the PCG at the end of May 1999. I trust this is acceptable and look forward to joining the PCG on a full time basis as soon as possible." (3) The Appellant was dismissed by the Respondents with effect from 4 April 2000.[3]The Appellant brought proceedings for unfair dismissal. The Respondents took the point that she did not have the necessary one year's continuous employment. They asserted that her employment had commenced on 20 May, being the date referred to in the letter of 31 March from which we have just quoted. That issue was heard as a preliminary issue.[4]Before the Tribunal the Appellant argued that she had continuity of employment with effect from 16 March 1999, alternatively 31 March 1999. The first was, as we understand it, the date at which she had started to do some work in connection with her new appointment: we return to that below. The latter represented the date of the acceptance letter, as from which point there was in existence (as appears to have been common ground before the Tribunal) a contract of employment. The Tribunal rejected the Appellant's submissions and held that it had no jurisdiction.[5]The essential statutory provision is section 211(1) of the Employment Rights Act 1996 which provides as follows:
"An employee's period of continuous employment for the purposes of any provision of this Act … begins with the day upon which the employee starts work."
There was unchallenged evidence that in the interval between her acceptance of the appointment with the Respondents (and indeed rather before that date) and the "official full time start date of 20 May" referred to in her letter, the Appellant, at the request of the Respondents, had carried out a fair amount of work for them. The Tribunal found that the work in question amounted to about 14 days. The question for the Tribunal was whether the doing of that work - to which we will refer as "the pre 20 May work" - constituted her "starting work" within the meaning of section 211(1).[6]The Tribunal's reasoning, in essence, was that the pre-20 May work was not done under the contract of employment with the Respondents , which the parties had expressly agreed would start on 20 May. Instead, in so far as she carried out work for the benefit of the Respondents during that period she did so gratuitously by way of preparation for the actual starting point. In support of that conclusion the Tribunal was influenced in particular by two point.[7]First , the parties had expressly agreed 20 May as the official start date. The relevant material before the Tribunal included not only the letter of 31 March 1999 quoted above but also:(a) as appears from paragraph 5(3) of the Reasons, a notification of the Applicant's appointment in which she herself stated "my official start date is 20 May 1999"; and(b) a letter dated 5 January 2000, which was before the Tribunal and of which Mr Porter showed us a copy in the course of argument, in which the Appellant again referred to "my official start date". It will be noted that in both cases the phrase used is "my official start date": the term "full time", which appears in the letter of 31 March, is not used.[8]Secondly , Rampton Health Trust invoiced the Respondents, and the Respondents paid, for the time spent on work for the Respondents prior to 20 May. It can only sensibly be inferred that she was regarded by all concerned during that period as the employee of the Trust, being in effect borrowed by the Respondents.[9]We can see no error of law in that reasoning. It will always be the case that there is some interval between the date that an employer agrees to employ an employee - that is, when the contract of employment comes into existence - and the date when the employee actually starts work under that contract of employment. During that interval it is not uncommon for the employee to perform some tasks by way of preparation. It will be a question of fact and degree in each case whether that work is to be treated as the "starting of work" for the purpose of section 211(1) of the 1996 Act. What the parties have provided for in any contractual documents will not be conclusive, but it will plainly in many cases be very influential or indeed decisive. In our view, that is precisely the basis on which the Tribunal approached the present case and we believe they were right to do so. In particular, it seems to us that they were entitled to attach weight to the two factors which we have identified above.[10]We were referred by Mr Porter, who appears for the Appellant today, to two authorities, but they do not appear to us to be decisive of the issue in the present appeal.[11]In the first, which is Sarker v South Tees Acute Hospitals NHS Trust [1997] IRLR 238, this Tribunal held that an employee could bring a claim for unfair dismissal even if he was dismissed in the interval between the making of the contract of employment and the actual start of work. We have no difficulty with that proposition, nor indeed did the Employment Tribunal; but the issue is of course wholly different from that which arises in this appeal.[12]The second authority, General of the Salvation Army v Dewsbury [1984] ICR 498, concerned an employee whose contract specified a start date of 1 May but who did not start work in fact until 4 May: 1 May was a Saturday and 3 May was a bank holiday. The employer contended that the relevant date for the purpose of section 211 was 4 May, in which case the employee would not have had the required period of continuous employment. The Employment Appeal Tribunal rejected that argument, but again the situation being considered was quite different from the present case, where the employee is arguing not for the start date identified in the documents but for an earlier date. Mr Porter, drew attention to the observation of Nolan J in that case that "… the phrase "starts work" does not refer to the undertaking of the full time duties of employment: it is intended to refer to the beginning of the employee's employment under the relevant contract of employment" (page 502 e-f). But those observations are directed at the issues in that case and are neutral for our purposes. Indeed, if anything, they might be said to assist the Respondents because they make it clear that the employment with which the Tribunal has to be concerned is employment under the relevant contract of employment.[13]The Appellant advances eight grounds of appeal which were succinctly and clearly developed by Mr Porter in argument before us. We should briefly deal with them.[14]Ground 1 : The Appellant refers to a passage at paragraph 18 of the Reasons where the Tribunal stated that:
"The real issue before the Tribunal was whether there was any contract of employment between the Appellant and the Respondent prior to 20 May 1999 which would otherwise be binding upon the parties."
She contends that that is a wrong formulation of the question since there was plainly a contract of employment – see Sarker 's case - and the question should have been expressed as whether or not the Appellant had started work under that contract. That is correct as far as it goes, but we have no doubt, reading the decision as a whole, that the Tribunal was as a matter of substance asking itself the correct question under section 211, to which it makes express reference elsewhere.[15]Ground 2 : The Appellant refers to paragraph 20 of the Extended Reasons where the Tribunal stated that it was its view that:
"The Appellant was not to be regarded as an employee of the Respondent prior to 20 May 1999."
That is essentially the same point. It is clear that what the Tribunal meant was that, although there was - as it expressly acknowledged elsewhere - a contract of employment in existence, employment under that contract did not start until 20 May.[16]Ground 3 : The Appellant notes that immediately following the passage quoted above, the Tribunal added:
"and further that it was never the intention of the parties that she be so regarded"
. Mr Porter argues that that was in effect to introduce a consideration of the subjective intentions of the parties, which were irrelevant and inadmissible. We do not accept this criticism. The Reasons read as a whole seem to us to show that the Tribunal was approaching the question of whether the pre-20 May work was intended by the parties to form part of the work done under the contract of employment by reference to the objective context. Mr Porter says that if that was so the word "further" should not have been used, but a minor verbal point of that sort is insufficient to bear the weight which he seeks to place on it.[17]Ground 4 : The Tribunal stated in paragraph 17 of the Reasons that:
"There is nothing within the correspondence which identifies any certain agreement to the effect that duties would be performed (whether part time or otherwise prior to that date)."
The Appellant contends that that is wrong because of the references in her letter of acceptance to her having already commenced "attending certain key events" and to her being available to work for up to two days per week thereafter. That passage so far as it goes does indeed assist the Appellant, but it cannot in our view be said to constitute an agreement that the duties would be performed prior to the "official full time start date" as duties under the contract of employment. Mr Porter refers also to passages in the Appellant's witness statement but even if these were unshaken by cross-examination they do not address the crucial question of whether the work was agreed to be done under the contract of employment.[18]Ground 5 : This ground amounts to no more than picking up the Tribunal on a minor factual inconsistency as to the date at which the Appellant first sought to be paid some remuneration by the Respondent for the work she had done in the pre-20 May period. The inconsistency consists in the Tribunal in paragraph 5.13 talking about a claim being asserted in August 1999 whereas in the following paragraph it refers to the claim not being asserted prior to 1 September 1999. It seems to us that nothing here could constitute an error of law.[19]Ground 6 : This ground addresses what is said to have been a "misunderstanding of the evidence" by the Tribunal on the question of what payments were made by the Respondent to the Rampton Hospital Trust. From the material helpfully shown to us by Mr Porter, the position appears to be that the Trust invoiced the Respondent in respect of only one day of the Appellant's work. Although she had done a further 14 days work, that had been done in annual leave time and did not form the subject of an invoice. Although the question is not very fully dealt with by the Tribunal, it may be right to say that there is a factual mis-statement in the Reasons in so far as they appear to suggest that payment was made for the full 15 days. "Misunderstanding of the evidence" is not of course as such an error of law; but even if the Appellant were able to go as far as to say that a finding had been made which was wholly contrary to the evidence we do not see that this error would vitiate the substance of the Tribunal's reasoning. What plainly influenced the Tribunal, as we have identified above, is the fact that the basic model adopted as between Rampton, the Appellant and the Respondents was that up to 20 May she would continue to be paid by Rampton and the work done by her for the Respondents during that period would give rise to a recharge or a charge from Rampton to the Respondents. That point has the same weight whatever the precise accounting for the particular days.[20]Ground 7 : The Tribunal recited at paragraph 5.11 of the Reasons that the Appellant accepted that she had not sought to challenge the terms of the full contract of employment once issued to her. Mr Porter tells us that his instructions were that she had made it clear in evidence that she thought there were some errors in that document. However, he is unable to say, having been able to consider the matter over the adjournment, that she ever challenged the date of 20 May which (so we understand) appears in the contract. It would be surprising if she had done so given that that date appears in her own letter of acceptance.[21]Ground 8 : The Appellant refers to paragraph 5.10 of the Extended Reasons where the Tribunal stated that:
"there was no evidence as to the terms of that alleged agreement, the party with whom it was agreed or the date of such agreement."
It is not entirely clear what agreement the Tribunal was saying that there was no evidence of. It is clearly right, as Mr Porter points out, that there was some evidence both in the Appellant's witness statement and elsewhere as to the arrangements under which the Appellant's services during the pre-20 May period were to be paid for, though that evidence was not very clear or precise. But even if the Tribunal has over-stated the dearth of the evidence, that over-statement has no impact of the essence of its reasoning, namely that there was no evidence to suggest that during the period prior to 20 May the Appellant was to be treated as working under a contract of employment with the Respondents. The Tribunal was in our view entitled to conclude that the weight of the evidence was the other way.[22]In those circumstances, we are unable to identify any error of law in the reasoning of the Tribunal and we accordingly dismiss this appeal.