THE ENGLISH LANGUAGE INSTITUTE OF LONDON CITY COLLEGE v 1) MR BENJAMIN DAVIS 2) MISS NICOLA PERKINS [2001] UKEAT 904_00_1601

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 904_00_1601Case No Appeal No. EAT/904/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE ENGLISH LANGUAGE INSTITUTE OF LONDON CITY COLLEGEAPPELLANT1) MR BENJAMIN DAVIS 2) MISS NICOLA PERKINSRESPONDENT
Before
His Honour Judge CollinsDate 16 January 2001
[1]APPEARANCES For the Appellant MR C CHATTERJEE Representative Instructed by Messrs Quinn Mantion Solicitors Compass House 7 Clove Crescent East India Dock London E14 2BD JUDGE COLLINS This is the preliminary hearing of an appeal against the decision of an Employment Tribunal sitting at Ashford whose extended reasons were promulgated on 7 June 2000 after a hearing which had taken place on 30 March. Summary reasons had been despatched on 13 April. By their decision the Tribunal held that there had been unlawful deductions of holiday pay from the wages of the Respondents Mr Davis and Miss Perkins and under that head awarded Mr Davis £621.20 and Miss Perkins £626.[2]They also held that both Respondents had been unfairly dismissed and awarded £5,189 to Mr Davis and £1,315.61 to Miss Perkins, the difference between the awards reflecting the degree of success that they each had had in obtaining alternative employment. The essential feature of the case was that the Tribunal held that the reason why both employees had been dismissed was that they had asserted their right to holiday pay under the Working Time Directive and that accordingly under section 104 of the Employment Rights Act 1996 their dismissal was automatically unfair.[3]The circumstances of the case were these. The Respondents were both English language teachers at an establishment which is called the English Language Institute of London City College, a Division of the Schiller International University. Each of them had been employed for some years by the college under a series of fixed term contracts covering the term time and although their fixed term contracts did not cover the vacations the Tribunal has recorded that no P45 forms were given to the Applicants. And it was understood up until the events that the Tribunal was concerned with that they would be re-engaged on a termly basis.[4]A situation of this kind was considered by the House of Lords in the case of Ford v Warwickshire County Council [1983] ICR 273 where a teacher was employed under a series of fixed term contracts over an eight year period and the House of Lords held that the continuity of employment was not broken in the circumstances of that case.[5]The dismissal was one which the Tribunal held had taken place by reason of the provisions of section 95(1)(b) of the 1996 Act:
"For the purposes of this part an employee is dismissed by his employer if he is employed under a contract for a fixed term and that term expires without being renewed under the same contract."
[6]The course of the proceedings in the Employment Tribunal was dictated by the fact that the Respondents made a deliberate decision not to attend. We have been supplied with a separate bundle by Mr Chatterjee, who is a consultant with the Appellant and also a member of the Bar who has taken over the case at short notice, contrary, I think to his own personal wish because the member of the Bar who was instructed has suffered an accident. Mr Chatterjee has very kindly seen it as his responsibility to help. He has shown us a letter which was sent to the Tribunal by the Principal of the college on 23 June although undated. It is written after 2 August saying that the college has decided not to send any representative but saying that at the time when these Appellants were not re-engaged only 4 students had been enrolled. The Tribunal were impressed by the fact that 10 days after the Appellants were told they would not be re-engaged an advertisement for teachers at the college appeared in a national newspaper and at paragraph 16 they conclude:
"We were impressed by the evidence of the Applicants and we are satisfied that on a balance of probabilities, they were dismissed because they had taken steps to assert their rights to holiday pay and they had therefore alleged that the Respondent had infringed their rights under section 13 of the Employment Rights Act."
[7]It seems to us that is a clear finding of fact. It would have been open to the Appellants to seek to justify their non -engagement of the Appellants by reference to the fact that there was no work for them to do. In those circumstances they would have been dismissed by reason of redundancy and provided that situation had been handled with procedural fairness the Appellants would have succeeded. But in fact their contention was as set out in the Notice of Appearance that they had not dismissed the Appellants at all and they made no alternative defence to the claim.[8]It seems to us in those circumstances that although Mr Chatterjee has endeavoured to argue that section 95(1) (b) does not apply there is no real factual legal basis for his submission. It would have been better for his clients in retrospect for them to take part in the hearing before the Tribunal, produce evidence and make whatever submission they thought they though appropriate.[9]But it is too late now to take points which could have been taken at the Tribunal and which were not taken as a matter of deliberate policy. It does not seem to us there is anything in this appeal. For those reasons we dismiss it.