ABC NEWS INTERCONTINENTAL INC v MR R GIZBERT [2006] UKEAT 0160_06_2108

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0160_06_2108Case No Appeal No. UKEAT/0160/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ABC NEWS INTERCONTINENTAL INCAPPELLANTMR R GIZBERTRESPONDENT
Before
His Honour Judge Peter Clark Mr T Haywood Ms B SwitzerDate 21 August 2006
[1]APPEARANCES For the Appellant MR JONATHAN SWIFT (Of Counsel) Instructed by: Messrs Bevan Brittan LLP Solicitors 35 Colston Avenue Bristol BS1 4AT For the Respondent MR PATRICK GREEN (Of Counsel) Instructed by: Bevan Solicitors Grove House Redland Bristol BS6 6UL SUMMARY Continuity of employment – mutuality of obligations – whether contract of service – S 100 ERA (H&S) inadmissible reason for dismissal. HIS HONOUR JUDGE PETER CLARK The parties to these proceedings in the London (Central) Employment Tribunal were Mr Gizbert, Claimant, and ABC News Intercontinental, Respondent. We shall so describe them. There is before us an appeal by the Respondent and a cross-appeal by the Claimant against the Judgment of an Employment Tribunal chaired by Mr C A Carstairs, promulgated with Reasons on 15 December 2005. The issues are:(i) whether the Claimant was automatically unfairly dismissed by the Respondent for a reason falling within Section 100(1)(c) and/or Section 105(3) Employment Rights Act 1996 (ERA) as the Employment Tribunal found. That question is the subject of the Respondent's appeal(ii) if not, whether he was unfairly dismissed under Section 100(1)(d) or (e) ERA(iii) if not, whether he had sufficient continuous employment to pursue a claim of "ordinary" unfair dismissal under Section 98 ERA. The second and third issues were resolved in favour of the Respondent by the Employment Tribunal and form the basis of the Claimant's cross-appeal. Background[2]The Respondent is a subsidiary of the well-known American broadcaster, ABC. From 1993 the Claimant was employed as a staff reporter based at the Respondent's London Bureau. He worked as a foreign correspondent covering news stories, including in areas of fighting in war zones. Such assignments could last for several weeks. Entering war zones gave rise to danger. If not abroad he would be on duty in the bureau, or on call to cover a breaking story.[3]The Respondent operated a voluntary war zones policy. A reporter would not be compelled to cover a war zone. From 1997 the Claimant began to decline such assignments on the grounds of the risks involved and because his growing children missed him during long assignments.[4]In Spring 2002 the Claimant met with Ms Gurbst, Vice-President of News Coverage, who told him that the Respondent wanted London correspondents "who were kicking the doors down to go to war zones". That did not include the Claimant, who wanted neither the duration nor the dangers of such reporting. As the Employment Tribunal observed, reporters were now being intentionally targeted in war zones, not simply unintended casualties. Ms Gurbst offered the Claimant a transfer to Seattle to cover local news; he put forward a counter proposal, that he should give up his guaranteed salary of about $200,000 per annum and benefits such as payment towards the children's education and housing costs, and instead go onto a fixed-term contract on a pay-per-day basis. The Respondent agreed, proposing a guarantee of 100 days work per annum at $1,000 per day. He would be entitled to decline any assignment offered.[5]The first contract entered into between the parties was dated 22 July 2002. The Agreement was for a period of 1 year. Clause 1 began:
"We hereby employ you to render your services on a freelance basis as a news correspondent …"
[6]Although the Respondent did not undertake to give the Claimant any particular assignment, nor was he bound to accept any assignment offered, by Clause 3(a) the Respondent agreed to provide a minimum 100 days at $1,000 per day. Any further days' work would be remunerated at the same rate.[7]The Claimant was obliged to negotiate exclusively with the Respondent prior to the expiry of the agreement concerning its extension. He was restrained from working for a US competitor for 180 days following termination without first giving the Respondent an opportunity to employ him on substantially comparable terms.[8]The 2002 contract was renewed by an Agreement dated 23 July 2003 (the 2003 contract). In fact he was provided with work in excess of 100 days per annum; under the 2002 contract he worked 236 days and under the 2003 contract 172 days. In August 2002 he was offered an assignment in Afghanistan and in early 2003 and Autumn 2003 he was offered assignments in Iraq. On each occasion he declined.[9]In March 2004 Ms Gurbst was told that she had to cut the Respondent's budget of $130 million dollars by $10 million over 2 years. She prepared a spreadsheet identifying possible cuts. The Claimant was second on the list.[10]On 9 June 2004 Mr Wilford, on instructions from Ms Gurbst, told the Claimant that his contract was not being renewed. He was to be replaced by someone who would go to war zones. The Employment Tribunal found that the Claimant's refusal to go to war zones was a matter of some importance to Ms Gurbst and the Respondent. It was one of the reasons why his contract was not renewed. He did not work for the Respondent after 4 June 2004.[11]The Employment Tribunal found that the Respondent takes safety seriously. It takes advice from consultants on health and safety generally, and on security in dangerous areas. The Respondent provides security staff and appropriate equipment, including body amour and armoured vehicles. Nevertheless, the Employment Tribunal found, an assignment in Iraq in 2004 was extremely dangerous. Continuity of Employment[12]By Section 108 ERA the Claimant must show one year's continuous employment ending with the effective date of termination in order to qualify for 'ordinary' unfair dismissal as contained in Section 98. However the qualifying period is disapplied in certain cases of automatically unfair dismissal, including dismissal for a Section 100 (Health and Safety) reason.[13]The statutory meaning of continuous employment is contained in Part XIV, Chapter 1 ERA. By Section 210(5) there is a presumption of continuity. Section 212(1) provides:
"Any week during the whole or part of which an employee's relation with his employer are governed by a contract of employment counts in computing the employee's period of employment."
Section 212(3) provides for the preservation of continuity in respect of any week in which relations were not governed by a contract of employment in 3 situations. In the present case the Employment Tribunal considered Section 212(3)(b) which provides for continuity in any week where the employee is absent from work on account of a temporary cessation of work.[14]Looking at the way in which the respective cases were put below the first question is whether, throughout the relevant period ending with the EDT (found by the Employment Tribunal to be 4 June 2004) the Claimant was employed by the Respondent under a contract of employment.[15]It was accepted on behalf of the Respondent that the Claimant was continuously employed from 1993 until he entered into the 2002 contract. Thereafter, it was the Respondent's case that the 2002 and 2003 contracts represented, as it was put to us by Mr Swift in argument, framework agreements under which contracts of employment could be made. It was further accepted on behalf of the Respondent that on days when the Claimant worked for ABC after 22 July 2002 he was then employed under a contract of employment, but not otherwise. Thus the issue, according to the Respondent, was whether during gaps in that employment the claimant could rely on the provisions of Section 212(3) to preserve continuity during the final year before termination.[16]For the Claimant it was contended by Mr Green that there was here an overarching or global employment contract with mutuality of obligation. Alternatively he relied on Section 212(3)(b) ERA and he tells us that in oral (as opposed to written) closing submissions below he further invoked Section 212(3)(c); absence from work in circumstances such that, by arrangement or custom, he was to be regarded as continuing in the employment of the Respondent for any purpose.[17]The Employment Tribunal dealt with the continuity issue at paragraphs 5.1-8 of their Reasons. At paragraph 5.2 they say:
"Although there were restrictions on what work the Claimant could do and what negotiations and agreements he could enter into with other companies, so far as the two contracts were concerned, the Tribunal has noted that there was no mutuality of obligation in respect of assignments in that the Claimant was not bound to accept assignments. Accordingly, the Tribunal has concluded that the two contracts were not contracts of employment because the necessary 'irreducible minimum' was absent."
They then go on to consider the alternative position under Section 212(3)(b) ERA. The Contract of Service[18]It is well-established law that the irreducible minimum of mutual obligation is necessary to create a contract of service; see Carmichael v National Power [2000] IRLR 43 , paragraph 18, per Lord Irvine of Laing LC, approving the Court of Appeal statements of the law to be found in Nethermere v Gardiner [1984] IRLR 240 and Clark v Oxfordshire Health Authority [1998] IRLR 125 .[19]The mutuality of obligation lacking in each of those 3 cases was a contractual obligation on the employer to provide work and for the worker to do it when offered. Carmichael was a case of 'casual' tour guides; Clark , the bank nurse and Nethermere concerned 'home workers'. In each case, on its facts, those mutual obligations were absent. Similarly in Stevedoring & Haulage Services Ltd v Fuller [2001] IRLR 627 (CA), where there was an express term of the agreement between casual dock workers (formerly employees) and the employer that no such obligations existed on the retrospective parties, and in McLeod v Hellyer Brothers [1987] ICR 526 a succession of contracts entered into between trawler men and the employer, which began and ended with each voyage, could not be joined together under an umbrella or overarching contract to provide continuity of employment throughout.[20]More recently in Cornwall County Council v Prater [2006] ICR 731 (CA) it was conceded by the Claimant, who carried out tutoring assignments for the Respondent Council over a 10 year period, that she could not rely on an umbrella contract, but the Court accepted that she could rely on Section 212(3)(b) ERA to provide continuity of employment throughout that period because she was, contrary to the employer's case, engaged under separate contracts of employment each time she provided her tutoring services. That, it seems to us, is a reverse of the principal arguments in the present case. The Court of Appeal decision followed the Employment Tribunal Judgment in the present case, although the EAT decision in Prater (upheld by the Court of Appeal) was cited below. At paragraph 51 Lewison J said this:
"The question whether there is mutuality of obligation is not the complete test for determination whether a contract of service exists. I would have thought that the question of mutuality of obligation goes to the question whether there was a contract at all, rather than what kind of contract there was, if a contract existed."
That observation echoes the view of Elias J in Stephenson v Delphi Diesel Systems Ltd [2003] ICR 471 , paragraph 11, where he said:
"The significance of mutuality is that it determines whether there is a contract in existence at all."
[21]The facts of the present case, it seems to us, differ materially from those in the earlier cases we have mentioned. Here, under both the 2002 and 2003 contracts the Respondent was obliged to provide the Claimant with 100 days work per annum at the rate of $1,000 dollars per day. The 2002 contract expressly provided (Clause 3(a)) the days worked in excess of 100 would also be remunerated at the same rate; that express provision was not repeated in Clause 3(a) of the 2003 contract but, despite 'whole agreement' clause (Clause 31) the parties proceeded under a similar arrangement for days worked in excess of 100 during the 2003 contract. Thus there was an obligation on the employer to provide 100 days worked, or if not, 100 days pay at the agreed rates. For his part the Claimant could decide whether or not to accept assignments offered to him but was to do so in good faith. Thus the Respondent did not have an unfettered right to offer no work or pay; the Claimant did not have an unfettered right to refuse assignments; he was obliged to act in good faith.[22]In our judgment the Employment Tribunal was wrong in law to find (Reasons paragraph 5.2) that the 'irreducible minimum' of mutuality obligation was absent from the written contracts of 2002 and 2003. As a pure matter of construction of those written contracts the necessary mutuality was present.[23]Were these contracts of service? We are quite satisfied that they were. We take into account the Respondent's concession that, when working, the Claimant worked under a contract of employment; the degree of control exercised by the Respondent over his work; his place in their organisation; the restrictions on his working for competitors (Mr Swift accepts that his freedom to work elsewhere is not inconsistent with a contract of service) the restriction on his working for US broadcasters after termination of the agreement and the requirement that he keep the Respondent advised of his commitments outside the Agreement. He was continuously employed by the Respondent from 1993 until 4 June 2004 within the provisions of Section 212(1) ERA.[24]In these circumstances we shall allow the Claimant's cross-appeal against the Employment Tribunal finding that he was not continuously employed for 1 year prior to EDT and substitute a declaration that he had the necessary continuity to found a complaint of ordinary unfair dismissal under Section 98 ERA. Automatic Unfair Dismissal[25]Section 100(1) ERA provides, so far as is material:
"(1) An employee who is dismissed shall be regarded for the purpose of this part as unfairly dismissed if the reason (if more than one, the principal reason) for the dismissal is that – … (c) being an employee at a place where – (i) there was no such representative or safety committee, or (ii) there was such representative or safety committee but is not reasonably practicable for the employee to raise the matter by those means, He brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety, (d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to revert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or (e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate step to protect himself or other persons from the danger."
[26]In a somewhat complicated exercise, the Employment Tribunal, at paragraphs 5.9 – 25 asked themselves and answered a long series of questions. Their conclusion was that the reason or principal reason for the Claimant's dismissal fell within Section 100(c), read with Section 105(3), that is his selection for redundancy (dismissal) was for a Section 100(1)(c) reason.[27]Their reasoning was that although the Claimant was not required to and did not visit war zones after 1997, nevertheless he raised the circumstances of danger involved in such work with the Respondent and these were circumstances 'connected with his work' (paragraph 5.11).[28]Mr Swift has presented a detailed argument in support of the proposition that the Employment Tribunal took a wrong approach in law to the application of Section 100(1)(c) ERA. However, we think that the matter can be put shortly in this way. Section 100(1) implements EC Directive 89/391 (the Framework Directive on health and safety). Both the Directive and the section are concerned with victimisation of those who raise, either as workplace health and safety representatives or in their own interests, issues about health and safety. It is, as Mr Swift submits, the raising of the issue which is protected by Section 100(1)(c), not the safety of the employee. In our judgment the Employment Tribunal has confused the two when considering Section 100(1)(c). The safety of the employee is dealt with at Section 100(1)(d) and (e), to which we shall return.[29]The error by the Employment Tribunal is demonstrated by paragraph 5.19 of their Reasons, where they hold:
"Accordingly, the Tribunal has concluded that the principal reason for dismissing the Claimant, in circumstances where the Respondent was cutting back its budget, was his refusal to go to war zones …"
In our judgment if that was the principal reason for selecting him for redundancy it was not a reason falling within the purview of Section 100(1)(c). That, it seems to us, is a complete answer to Mr Green's submission that the Employment Tribunal's conclusion on Section 100(1)(c) was a finding of fact. The reality is that the reason for dismissal as found by the Employment Tribunal at paragraph 5.19 is not one falling within the statutory provision; true it is that the Claimant brought to the Respondent's attention the dangers of travelling to a war zone, something which the Respondent fully recognised and was aware of; however, that was not on the Employment Tribunal's findings, the reason or principal reason for his dismissal; it was that he would not go to war zones and the Respondent needed reporters who would do so. Accordingly we shall allow the Respondent's appeal against the Employment Tribunal finding of automatically unfair dismissal under Section 100(1)(c).[30]The Employment Tribunal went on to consider the application of Section 100(1)(d) and (e). The claim failed under those provisions because the danger was not such that the Claimant could reasonably believe it to be 'imminent'. (Reasons paragraph 5.23)[31]Mr Green argues, by way of cross-appeal, that since danger in war zones was ever-present (which we accept) and the Respondent expected its correspondents to go to war zones, 'at the drop of a hat', it was imminent so as to engage Section 100(1)(e) or (e).[32]We cannot accept that submission. The Claimant was under no obligation, contractual or otherwise, to visit war zones. The Respondent operated a voluntary war zones policy. His place of work was London. He chose not to visit war zones. He was thus in no danger, let alone imminent danger, nor could he, in the circumstances, reasonably believe otherwise.

(e) Disposal

[33]We allow the Respondent's appeal and the Claimant's cross-appeal on the continuity issue; the remainder of the cross-appeal is dismissed.[34]The upshot is that the finding of automatically unfair dismissal for a Health and Safety reason is set aside; however the Claimant is able to pursue his claim of ordinary unfair dismissal under Section 98 ERA on which the Carstairs Tribunal has not ruled.[35]Dismissal is admitted; the Employment Tribunal appears to have found (although this is subject to confirmation) that the reason, in the absence of an inadmissible reason, is redundancy. If so, then the only issue remaining is whether dismissal for that reason is fair or unfair under Section 98(4). The Employment Tribunal has carried out an assessment of compensation. By a Remedies Judgment dated 30 June 2006 it has assessed the gross compensatory award in excess of the statutory maximum for ordinary unfair dismissal. No basic award was made due to the Employment Tribunal finding on continuity, but it is capable of easy agreement.[36]This case occupied the Employment Tribunal for 8 days. It would be sensible and proportionate, therefore, for the matter to be remitted to the same Employment Tribunal for determination of whether the dismissal was fair or unfair, applying Section 98 ERA. Subject to any separate appeal against the Remedy Judgment on its merits, it will then be open to the Employment Tribunal to reassess compensation in the light of its further findings on liability.