MR B E FOWLER v SOUTHEND ON SEA BOROUGH COUNCIL [2001] UKEAT 1021_98_2304

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1021_98_2304Case No Appeal No. EAT/1021/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR B E FOWLERAPPELLANTSOUTHEND ON SEA BOROUGH COUNCILRESPONDENT
Before
Mr Recorder UnderhillDate 23 April 2001
[1]APPEARANCES For the Appellant MS B MORRIS (of Counsel) Free Representation Unit Fourth Floor Peer House 8-14 Verulam Street London WC1X 8LZ For the Respondent MR JAMES BAKER (Solicitor) Southend on Sea Borough Council PO Box 6 Civic Centre Victoria Avenue Southend on Sea Essex SS2 6ER MR RECORDER UNDERHILL QC : The Appellant started work for the Respondents as a "temporary gardener" on 10 May 1995. He was dismissed on 29 October 1995 but re-engaged with effect from 8 December 1995; and thereafter his employment continued until he was dismissed for misconduct on 24 October 1997.[2]On 4 January 1998 he brought proceedings for unfair dismissal. The question arose whether he had the minimum period of continuous employment – at the relevant time two years – for the Tribunal to have jurisdiction to entertain his claim: see s 108 (1) of the Employment Rights Act 1996 . On the face of it, the six week gap referred to above meant that his employment between May 1995 and October 1997 was not continuous; but s 212 (3) of the 1996 Act provides that:
"… any week … during the whole or part of which an employee is – (a) … (b) absent from work on account of a temporary cessation of work, (d) … counts in computing the employee's period of employment."
The Appellant argued before the Employment Tribunal that the gap in question had been "on account of a temporary cessation of work", within the meaning of that provision. By a decision sent to the parties on 20 July 1998 the Tribunal rejected that argument and dismissed his application accordingly. The length of time that it has taken for his appeal to be heard is because, in common with a number of other appeals, it was stayed on the basis that it might prove to be academic depending on the outcome of the Seymour-Smith litigation: in the event, however, the employees failed in that case (see [2000] ICR 244 ) and the issue originally raised remains to be determined.[3]The Tribunal's account of the evidence, and its findings of fact, were as follows:
"3. The Applicant told the Tribunal that his employment as a temporary gardener with the Respondent expired on 29 October 1995 and he was told that further work would be available for him in December. In November he telephoned Mr Owen and was told that the new contract of temporary employment would commence on 8 December 1995. The Applicant was thereafter continuously employed until he was dismissed on 24 October 1997. 4. Mr Owen told the Tribunal that the money for the employment of temporary gardening staff had run out and four or five temporary staff had their contracts of employment terminated on 29 October 1995. Mr Owen personally thanked the staff for their efforts and he told the Applicant before his contract ended that he was pleased with his work and that should more work become available he would contact him. He said he did not indicate to the Applicant that more work would be forthcoming because he did not know when the funding would become available. 5. The Tribunal finds that four or five people were laid off on 29 October 1995 and were told there might be other temporary work later. The Applicant telephoned Mr Owen in November and was told to start again on 8 December. A P45 was sent to the Inland Revenue saying that the Applicant's leaving date was 29 October 1995. The Applicant told the Tribunal he did not receive the P45 but the Tribunal finds that the Inland Revenue did receive it and it was date stamped 8 November 1995."
On the basis of those findings, the Tribunal concluded as follows:
"6 The Tribunal finds that this was not planned to be a temporary cessation of work, which would qualify towards two years continuous employment by section 212(3)(b) of the Employment Rights Act 1996. All the people laid off were not taken back and given further temporary gardening work. 7 The Tribunal finds that the Applicant did not have two years continuous employment when he was dismissed on 24 October 1997 and his period of continuous employment began on 8 December 1995."
[4]Ms Morris for the Appellant submitted that the Tribunal erred in law in essentially two respects.[5]First , she submitted that where an employer is obliged to dispense with the services of an employee or employees on account of a shortage of funds that situation could constitute a "temporary cessation of work" within the meaning of the subsection. In this connection she referred us to University of Aston v. Malik [1984] ICR 492. She submitted that this was something which the Tribunal had failed to appreciate. We have no difficulty with the proposition of law, but we can see no sign that the Tribunal misdirected itself in this respect. There is nothing whatever in the Reasons to suggest that it felt precluded from finding that the Applicant's case fell within the section because the shortage of work was the result of a lack of funds. We are satisfied that there is nothing in this point.[6]Secondly , Ms Morris submitted that the Tribunal misdirected itself by treating as conclusive the fact that – as it held – the cessation of work in the Appellant's case was not "planned" to be temporary. In our view this submission is well-founded. The House of Lords in Fitzgerald v. Hall Russell & Co Ltd [1969] 3 All ER 1140 clearly held, in relation to the predecessor provision to s 212 (3), that whether or not a cessation of work was temporary must be decided with hindsight, that is at the date when the employment finally ended and the question of continuity of employment fell to be determined. It is accordingly not sufficient for an employer to establish, as – on the Tribunal's findings – the Respondent did here, that at the time that the employee is first laid off there is no firm intention to re-engage him at a particular time or at all. It is true that the authorities do not suggest – nor did Ms Morris submit – that the intention of the parties at the time of the original laying-off is irrelevant. On the contrary, both in Fitzgerald and in the earlier decision of Hunter v. Smith's Dock Co Ltd [1968] 2 All ER 81 (which was expressly approved in Fitzgerald ), and indeed in several later authorities, it is emphasised that the decision is one of fact and degree in which all relevant circumstances are to be considered: those must include the intention of the parties as to the duration of the lay-off (see, e.g., the observations of Lord Parker in Hunter at p 84G-I).[7]The Tribunal does not appear to have been referred to those authorities. In our view the way in which it expressed its reasons is not consistent with it having approached the issue before it in that way. The only factor referred to in its extremely brief reasoning was the intention of the parties at the time that the Appellant was dismissed. The reference to the fact that some of the other employees were not offered further work does not, properly understood, involve any element of hindsight: the Tribunal appear to be referring to it as confirming that the prospect of further employment was not a foregone conclusion. There is no consideration of any other circumstances. In particular, there is no consideration of the length of the actual period of lay-off relative to the periods that the Appellant was employed on either side. In our view such consideration is essential.[8]We then have to ask ourselves whether if the Tribunal had asked itself the correct question the answer would have been plain. A cessation of work is "temporary" if it lasts "only for a relatively short period of time" (see Flack v. Kodak Ltd. [1986] I.C.R. 775, per Woolf L.J. at p. 781 B). The primary facts have been found. The Appellant had been employed for 5½ months prior to the lay-off, and that employment was followed by a further 22 months' employment. It is also material that, on the Tribunal's findings, he was offered at least a reasonable prospect of re-engagement in the future - which eventuated shortly afterwards. In our view so short a cessation, against that background, could only realistically be described as "temporary". We accordingly see no reason for this question to be remitted.[9]In those circumstances we allow the appeal and hold that the Appellant had the necessary minimum two years' service for the purpose of s. 108 (1) of the 1996 Act.