MR R E ORCHARD v CARPETRIGHT PLC [2005] UKEAT 0824_04_0202

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0824_04_0202Case No Appeal No. UKEAT/0824/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R E ORCHARDAPPELLANTCARPETRIGHT PLCRESPONDENT
Before
Mr Justice Silber Mr M Clancy Mr T HaywoodDate 2 February 2005
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant For the Respondent No appearance or representation by or on behalf of the Respondent SUMMARY Unfair Dismissal Was continuity of employment affected by period when the Appellant had resigned? Both sides agreed that continuity of employment was not broken by period when Appellant had resigned. THE HONOURABLE MR JUSTICE SILBER This is an appeal by Mr Orchard against the Decision of the Employment Tribunal, sent to the parties on 11 May 2004, by which it dismissed his claim for unfair dismissal and it refused his application to amend his claim to include a claim for non-compliance with minimum wage regulations. The latter point is no longer pursued. Thus, the only point on issue on this appeal is whether the Employment Tribunal was correct to hold that the Appellant's claim for unfair dismissal could not proceed because he had failed to satisfy the requirements of section 108(1) of the Employment Rights Act 1996 , on the grounds that he has not been employed for a period of more than one year, ending with effective date of termination, which was, in this case, on or about 21 June 2003.[2]After the preliminary hearing of this appeal, conducted by His Honour Judge McMullen QC, the Respondent's representatives conceded that the appeal should be allowed and they asked that the Appellant's substantive claim for unfair dismissal be remitted to the Employment Tribunal. By a subsequent letter, the Appellant's advisers agreed that the matter should be so remitted. Both parties asked for this appeal to be considered on paper, and our task is to consider if what the parties had agreed to is an appropriate order.[3]The Appellant commenced his employment with the Respondent in March 2001. The Appellant's case was that the Respondent had attempted to reduce his contractual hours, and that this constituted a breach of contract which led to the Appellant resigning, by letter, to take effect on 27 April 2003. The Appellant then received a letter from the Respondent, dated 7 May 2003, which offered him reinstatement from 10 May 2003. This letter also stated:(i) that the Appellant would be considered to have continuous employment from 11 March 2001;(ii) that he would be paid for an interim period; and(iii) that all other terms and conditions would remain the same. The question for the Employment Tribunal was therefore whether the Appellant's resignation broke his continuity of employment between the time when he resigned on 27 April 2003 and the time when he was reinstated on 10 May 2003, with the result that he cannot now bring his claim for unfair dismissal, bearing in mind that the Appellant's contract subsequently terminated on or about 21 June 2003.[4]It is common ground that if the Appellant's continuity of employment had been broken in that period, he (that is the Appellant) could not bring a claim for unfair dismissal, as he would not then have been employed for the necessary period of one year prior to the termination of his employment.[5]The reasoning of the Employment Tribunal was that the Appellant resigned in response to what he perceived was a breach of contract by the Respondent, with a result that his contract of employment came to an end. There was, according to the Employment Tribunal, no arrangement prior to the termination of the contract which preserved his continuity of employment. Thus the Employment Tribunal concluded:(i) That the Appellant's period of continuous employment prior to the termination of his employment began when he was reinstated on 10 May 2003, and then ended on or around 21 June 2003.(ii) That, in consequence, the Appellant had not completed the period of 12 months service needed under section 108(1) of the Employment Rights Act 1996 in order to present a claim for unfair dismissal.[6]The grounds of appeal are that the Appellant did have continuity because his continuity of employment had not been broken when he resigned. This raises the issue of whether it is permissible to take into account thee weeks from 27 April 2003 until 10 May 2003.[7]By section 212(1) of the Employment Rights Act 1996 , it is provided, insofar as is relevant that:
"212 Weeks counting in computing period (1) Any week during the whole or part of which an employee's relations with his employer are governed by a contract of employment counts in computing the employee's period of employment."
A week is defined in section 235(1) of the Employment Rights Act 1996 as follows:
"235 (1) In this Act, except in so far as the context otherwise requires- … "week"- (a) in Chapter I of this Part means a week ending with Saturday, and (b) otherwise, except in [sections with which this application is not concerned], means, in relation to an employee whose remuneration is calculated weekly by a week ending with a day other than Saturday, a week ending with that other day and, in relation to any other employee, a week ending with Saturday."
[8]The undisputed evidence shows that in the week beginning 27 April 2003, the Appellant was engaged for the purpose of section 212(1), as he worked on Sunday 27 April 2003. In the following week, namely the week beginning 4 May 2003, the Appellant worked on 11 May 2003. We infer that both parties accept that the week of employment of the Appellant, for the purposes of section 212(1) started on the Sunday. We reach that conclusion because:(i) that appears to be the basis of Judge McMullen's views; and(ii) the parties agreed to remit the case on basis of Judge McMullen's approach that the week started on a Sunday.[9]When the Appellant was working for the Respondent on those days, during that period, it must have been at a time, when in the words of section 212(1) of the 1996 Act , "[his] relations with his employer [ie the Respondent] [were] governed by a contract of employment…". Thus the effect of section 212(1) is that the two weeks commencing on 27 April 2003 count in computing the Appellant's period of employment, with the result that his continuity did not suffer. This means that the Appellant was employed for more than a year before his employment terminated, with the result that he is entitled to bring his claim for unfair dismissal.[10]We are fortified in coming to this conclusion that these reasons confirm with those which were put forward by Judge McMullen in his Decision at the preliminary hearing on 2 November 2003. Thus it is not necessary to consider the next point, which is that the Appellant would have succeeded by using the provisions set out in section 212(3) of the 1996 Act .[11]We suspect if these matters had been put to the Employment Tribunal in the way that they have been to us, it would have come to the same conclusion as the one that we have reached.[12]Thus the appeal should be allowed by consent and we remit the case the same Employment Tribunal, if practicable, for the further hearing on the issue of whether there has been unfair dismissal.