WALFORD WYNN JONES v POWYS COUNTY COUNCIL [2002] UKEAT 1157_01_0503

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1157_01_0503

Case No Appeal No. EAT/1157/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

WALFORD WYNN JONESAPPELLANT

POWYS COUNTY COUNCILRESPONDENT

Before

Mr Justice Lindsay

Date 5 March 2002

[1]APPEARANCES For the Appellant MR NICHOLAS SMITH (Of Counsel) Instructed by: Messrs Bevans Solicitors Grove House Grove Road Redland Bristol BS6 6UL MR JUSTICE LINDSAY (PRESIDENT) We have before us by way of a Preliminary Hearing the appeal of Walford Wynn Jones in the matter of Walford Wynn Jones v Powys County Council . Today Mr Jones has been represented by Mr Nicholas Smith.

[2]The chronology of the matter is that on 8 March 2001 Mr Jones presented an IT1 for unfair dismissal. He said that he had been employed from 6 May 1997 to 11 December 2000 by the County Council. His box 11 which sets out his complaints was marvellously terse. It simply said:

"Wrongful dismissal. I have not been properly treated by my employer & have been wrongfully dismissed"

[3]On 28 March the County Council put in an IT3. They said that the employment had, strictly speaking, been from 1 May 1997 to 8 December 2000. And they said:

"1. The Applicant was employed on a fixed term contract which expired on 8 th December, 2000. 2. The said contract was not renewed by the Respondent. 3. The Respondent denies that it acted unfairly in failing to renew the Applicant's contract. 4. The Respondent claims that in reaching its decision it acted fairly and reasonably having regard to the circumstances of the case."

[4]On 19 July 2001 there was a hearing at Cardiff. Mr Jones was in person. The County Council was represented by a solicitor. There was oral evidence given by Mr Jones on his side and by 2 persons on the other side, the County Council side.

[5]On 8 August 2001 the decision was sent to the parties and it was:

"The unanimous decision of the Tribunal [which I should say was the Tribunal at Cardiff under the chairmanship of Mr Robin Havard] is that the dismissal was fair."

[6]The background to the case was unusual. Three properties and the very many artefacts within them had been given to the County Council by will for the purpose of comprising a museum. In the course of their decision the Tribunal made a number of findings. They said, first of all, that Mr Jones had been employed on a fixed term contract for a period of 12 months commencing on 1 May 1997. They said that completion of an Accession Register and Cards and a Catalogue represented the core task confronting Mr Jones. They said that in December 1996, before the employment began, it was agreed that it was necessary to appoint a person as documentation assistant to undertake the cataloguing of the various artefacts at the properties and they said that Mr Jones was a person of considerable experience and expertise and had applied for the post and was successful, as we know. They said in 3.9:

"Even though the original contract was due to expire on 30 April 1998, it was extended to 30 April 1999, (and then in effect) 31 July 1999, 30 January 2000, 30 April 2000, 31 October 2000, 1 December 2000 and lastly until 8 December 2000. On renewal the terms of the contract remained the same."

[7]As to the end of the contract they said in their 3.14:

"When the respondent terminated the applicant's contract, Mr Griffiths of the respondents considered whether there were any other roles the applicant may have undertaken, but no tasks commensurate with the applicant's skills and experience were identified."

[8]And they added at 3.18:

"Since the departure of the applicant, no work has been undertaken on the Accession Register. The completion of the Accession Register remains dependent on the decision reached in the next phase."

[9]The Tribunal gave itself directions on the law. They referred themselves in 4.4 to Terry -v- East Sussex County Council

[1997] All ER 567

. They referred themselves to the Court of Appeal decision North Yorkshire County Council –v- Faye

[1985] IRLR 247

and they quoted a passage from the judgment of Browne-Wilkinson LJ as he then was in part of that case:

" "…if it is shown that the fixed term contract was adopted for a genuine purpose and that fact was known to the employee, and it is also shown that the specific purpose for which the fixed term contract has ceased to be applicable then, for the purposes of Section 98, these facts are capable of constituting some other substantial reason"."

[10]And the earlier Terry case had led to a quotation from it:

"That the Tribunal must "ensure that the case is a genuine one where the employee has to his own knowledge been employed for a particular period, or a particular job on a temporary basis"

[11]I mentioned that the decision had been sent to the parties on 8 August 2001. On 18 September there was a Notice of Appeal from Mr Jones. It has been amplified by Mr Smith today in his Skeleton Argument. Indeed, there is a request that the Grounds of Appeal should be amended. The Notice of Appeal raises a number of points. In paragraph 2 of his Skeleton Argument Mr Smith complains that the witness statement of Mr Paul Griffiths, who gave evidence for the County Council, refers to some documents, minutes, which were not produced at the trial. The Skeleton Argument says:

"The Respondent did not produce any such minutes at trial."

The witness statement in question says:

"I attach at P.C.C. 6 Minutes of the Working Party."

[12]But, if they were not in fact attached but were relevant, well then, Mr Jones could, of course, have caused them to be produced at the hearing. We do not see any error of law involved in the failure to produce them. The Tribunal, not having had them in front of them, cannot be complained of as not having sufficiently paid attention to matters that were not, in fact, produced to them. So there is no error of law in that part of the case.

[13]The next ground is that it is said that the Tribunal failed to have proper regard to the letter of 14 December 2000. We looked at that letter. It is clearly marked ' WITHOUT PREJUDICE '. It said it is right the Tribunal should not have paid attention to it, at any rate unless there was a clear waiver of that description and that the waiver was sufficiently explained. In any event the letter is from Mr Jones rather than to him and therefore it might have been nothing but a self serving letter. It is not itself evidence against the County Council respondent. So there is nothing of any significance there.

[14]The Skeleton Argument in its paragraph 4 begins:

"In the circumstances the Tribunal erred in law in determining that the "purpose for which the Applicant was employed had ceased to be applicable.""

We looked into that. It is, of course, not uncommon for the achievement of the purpose of a Trust to be found to take rather longer than had been at first thought. And it sometimes happens that the work of a Trust has to be stopped, perhaps with the view to being renewed later, perhaps with the view to being renewed when more finance is available. That the purpose of an underlying Trust has continued does not necessarily suggest that the purpose of the related employment necessarily continues with it. One can plainly have an underlying Trust for continuing purpose that is suspended for the moment, leading the employment to be suspended. We see no error of law in that area of the decision.

[15]Next Mr Smith attacks that conclusion; in his paragraph 5 of the Skeleton Argument he says:

"Paragraph 5.4 of the extended reasons confirms that the Tribunal did no more than accept the unsupported oral evidence advanced by the Respondent."

But, of course, the Employment Tribunal is entitled to choose which evidence it prefers. It is certainly no error of law to rely upon unsupported oral evidence and it transpires that in any event the so called unsupported oral evidence came from Mr Griffiths who gave oral evidence and therefore was available to be cross-examined. One might not always agree with a conclusion but it is no error of law for a Tribunal to come to a decision that is unsupported by no more than oral evidence given by a party at the hearing. So there is no error of law there.

[16]But now we come on to an issue that we find much more available to Mr Jones and that is the issue of redundancy. An answer to the question of redundancy could have been that redundancy was not truly raised at the Employment Tribunal. It is not in the IT1 and it is not in the IT3.

[17]However, it was recognised as required to be considered by the Tribunal. They say in their 3.17:

"It was also recognised that, even though in the letter of appointment the applicant waived his employment rights and his right to a redundancy payment, the applicant could not waive his employment rights, but the waiver clause in respect of his right to a redundancy payment was confirmed in a letter from the respondents to the applicant's Union on 11 December 2000."

[18]One needs to have in mind section 197(3) of the Employment Rights Act. Mr Jones, never, it seems, had a fixed term contract of more than 2 years and so to that extent it is at lowest arguable that waiver is irrelevant. Mr Jones did, however, satisfy section 155, namely that in aggregate his employment was for more than 2 years. And there is, of course, under section 210(5) of the Employment Rights Act , a presumption that employment is continuous. Obviously that can be rebutted but until it is rebutted that is the presumption. So it seems to us that there may be here a thoroughly arguable case as to redundancy.

[19]Mr Smith's Skeleton Argument also refers to alternative employment. We have already cited the passage where Mr Griffiths had said there were no tasks commensurate with the Applicant's skills. We have no reason to think that was an impermissible conclusion on the part of the Tribunal so no error of law is identified in that part of the argument. But, reverting to redundancy, there was no claim for redundancy payment raised in the IT1 nor is redundancy mentioned. In fact in the IT1 Mr Jones was asking for re-instatement or re-engagement. And it could be that redundancy was not looked into at all. Of course, if it was not it could hardly be an error of law on the Tribunal's part not to examine into a subject that was not raised. But we do see that there is something arguable in this area. We do not know truly whether and to what extent the issue of redundancy was raised.

[20]So, we shall allow the issue raised in paragraph 7 of the Skeleton Argument under the heading WAIVER to go to a full hearing. The Notice of Appeal needs to be amended fully to include it. In fact, the grounds of Redundancy and Waiver are so closely related to the question of "some other substantial reason" and to the question of alternative employment that, although we have made comments on those subjects in passing, we do not strike them out as being unfit to go to the full hearing so that the whole of the Notice of Appeal as amended more specifically to raise the waiver and redundancy issue can go to a full hearing.

[21]It may be that by the full hearing it will have transpired that redundancy was not mentioned below and is not an issue that can be described as having been raised. What we therefore require is that when the Notice of Appeal has been fully amended (and we will discuss with Mr Smith how long that will take and it should not take very long) the Notice of Appeal and the transcript of this judgment can be sent to the chairman and he can be asked for his comments on how far, if at all, redundancy was truly raised below. It is to be recognised that one cannot raise an issue on appeal unless it was raised below, at any rate if it is an issue that in any way might depend upon evidence. But, with the observations that we have made, we will allow the whole Notice of Appeal to be amended as we have mentioned to go to a full hearing.