MISS LUCY BRIGHT v LINCOLNSHIRE COUNTY COUNCIL [2001] UKEAT 17_01_1806

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 17_01_1806Case No Appeal No. EAT/17/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS LUCY BRIGHTAPPELLANTLINCOLNSHIRE COUNTY COUNCILRESPONDENT
Before
Mr Justice LindsayLord Gladwin of CleeDate 18 June 2002
[1]APPEARANCES For the Appellant MR JONATHAN AUBURNE (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE LINDSAY (PRESIDENT) We have before us, as a preliminary hearing, the appeal of Lucy Bright in the matter Lucy Bright v Lincolnshire County Council. Today, Miss Bright has been represented by Mr Jonathan Auburne under the ELAAS system and we are grateful to him for the assistance which he has given.[2]The chief question which was in issue below was whether Miss Bright, on taking advantage of the Lincolnshire County Council's Employment Break Scheme and then later going back into their employment, was to be treated as if she had suffered a break in employment during the period when she was absent under that employment break scheme. The point was important because if she had suffered a break then she had not got sufficient service to claim unfair dismissal and yet that was what she was claiming. On the other side, if the employment break scheme did not introduce a break in employment, then she had continuous service greatly exceeding the year that was required in order for her to be able to claim unfair dismissal.[3]We have in front of us the written Lincolnshire County Council Break Scheme and there are a number of points to be made each way under that scheme, namely points that rather suggest that a person taking advantage of it would suffer a break and sometimes points that would suggest they would not. What we found quite remarkable is that an officially produced and not overshort document should leave any doubt what the position was intended to be.[4]No doubt Miss Bright will have heard, during the course of argument, points in her favour and points against and we do not suggest that the points in her favour are so weak as not to entitle her to say there are some arguable errors of law in the Employment Tribunal's judgment. So we shall let the matter go to a full hearing.[5]But there is one point that is of interest and needs a little further ventilation. And that is that when she did return to service, Lucy Bright was given a written contract of employment, Lincolnshire County Council Schedule TC2, on 22 November 1999. It set out her starting date, 25 October 1999. It said that it was a temporary contract until 25 December 1999. It would seem at least arguable that that contract was thereafter extended or renewed and was the contract under which she was ultimately dismissed. In other words that she was dismissed under an extension of this originally temporary contract of 22 November 1999. That is a point that may need to be gone into in more detail. But amongst its written terms was this:
"continuous service in local Government was from 18 April 1994."
One might think that that would have led to a conclusion that for all purposes she was to be treated as having continuous service from 18 April 1994 and that that was a matter of contract between her and Lincolnshire. But the ordinary consequence, as it would seem to us to be, of that provision was escaped by the Tribunal on the ground that that provision was an error. The Tribunal says:
"The terms and conditions of that contract issued on 22 November stated that her continuous service in local Government was from 18 April 1994. This arose because the computer records of her employment had not been correctly treated at the time of her break."
And later at paragraph 16, the Tribunal says:
"We do not accept that the statement of continuity of employment contained in the contract of November 1999 is other than an error and it was [ now one has to put in the word "not" which the Tribunal seems to have left out ] not indicative of an arrangement made at the time of the break."
[6]The Tribunal does not explore in any detail or at all the ability of one party to a bilateral contract to escape from one of its terms simply by saying that the term represented a computer error. There is no finding that Miss Bright understood or believed that that term was an error; indeed, it would seem that the whole of her assertions were on the basis that her understanding was that it was not an error but represented the true position. It does seem to us a possibility that the Council should or could have been estopped from denying that Miss Bright was entitled to be treated as having continuity of contract for all purposes as from 18 April 1994. What we can't be sure of at this stage is how far the point is open to Miss Bright because if it wasn't taken below it cannot be taken on appeal see Jones v The Governing Body of Burdett Coutts School [1999] ICR 38.[7]It seems to us that there needs to be some exploration on the part of Miss Bright's advisers as to how far, if at all, the point was taken below. We do not suggest for a moment that it is an essential prerequisite that the word "estoppel" was used below. The question really is whether there was asserted the notion that it was wrong of the Council to turn round and assert that there was not employment continuous from April 1994 in the light of that contractual provision. We will, as we have indicated, allow the Notice of Appeal to go forward as it is but we will also give leave to Miss Bright within 14 days to amend the Notice of Appeal as thought fit to raise the estoppel grounds if, but only if, on consideration, Miss Bright's advisers assert that it is indeed open to her and thus capable of being taken on appeal.[8]If the point is raised by an amendment after reflection, well it seem to us that the Chairman's notes are going to be necessary on a number of points. We do not require Chairman's notes in any event but only if the Notice of Appeal is amended to raise the estoppel point. The points which will need to be investigated in that way are these. Firstly, whether Anna Miners accepted in cross-examination, as Miss Bright asserts, that her, that is Anna Miners', paragraph 14 of her witness statement was unfounded and, in effect, that she, Anna Miners, had no ground for believing that Miss Bright understood that there was no continuity of service under the scheme. Secondly, what evidence was there of the provision in the written contract as to continuity from 18 April 1994, being merely a computer error or some corresponding type of error. Thirdly, whether the contract which subsisted at the point of dismissal was an extension or continuation of that temporary written contract of 22 November 1999. And, fourthly, whether there was any evidence that indicated that Miss Bright knew that the provision about continuity from 18 April 1994 was a mistake.[9]If, and only if, the Notice of Appeal is amended and served on the Employment Appeal Tribunal and the Lincolnshire County Council within 14 days to take the estoppel point, then Chairman's notes on those subjects will be required but otherwise we simply direct that the matter is to go to full hearing.