MRS OCHIKA STELLA v THE REGARD PARTNERSHIP [2007] UKEAT 0614_06_0803

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0614_06_0803Case No Appeal No. UKEAT/0614/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS OCHIKA STELLAAPPELLANTTHE REGARD PARTNERSHIPRESPONDENT
Before
His Honour Judge BirtlesDate 8 March 2007
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER BEING PRESENT NOR REPRESENTED For the Respondent MRS K SHAW Human Resources Manager SUMMARY UNFAIR DISMISSAL- Exclusions including worker/jurisdiction ET found on the facts that the Claimant's start date under S.211 ERA 1996 was inside the 12 month period leading up to her dismissal and therefore she could not bring a claim for U D. Held ET were entitled to do so on the facts. The fact that Claimant(i) had an unpaid training day and(ii) her name appeared on the employer's pay roll albeit that she did not work and was not paid were irrelevant. HIS HONOUR JUDGE BIRTLES Introduction This is the Full Hearing of an appeal by Mrs Stella Ochika from the judgment on a Pre Hearing Review of an Employment Tribunal sitting in Exeter on 15 August 2006. The Tribunal consisted of a Chairman sitting alone, Mr C F Sara. The Chairman decided that the true start date for Mrs Ochika's employment with the Respondent, the Appellant here, under Section 211 of the Employment Rights Act 1996 was 8 May 2005.[2]Mrs Ochika's service finished on 11 April 2006. It followed that she did not have the requisite 12 months period of continuous employment in order to enable to bring a claim for unfair dismissal. Against that decision of Mr Sara the Appellant appeals to this Tribunal and was given permission by His Honour Judge McMullen QC on 2 October 2006 to put this case forward to a Full Hearing. It is heard by me sitting alone because it is an appeal from the judgment of an Employment Tribunal Chairman sitting alone.[3]Today Mrs Ochika does not appear but has written to the Tribunal on 22 February 2007 saying that she was not in a position to attend the hearing today for personal reasons but would request the Court to take into account all her arguments in the Bundle which she would like the Respondent to clarify. It is not of course the purpose of an appeal to the Employment Appeal Tribunal to clarify the Respondent's arguments. It is for the Appellant to make good her case. I have however read the appeal bundle and considered all of Mrs OChika's arguments as well as those of the Respondent and therefore give a judgment on the merits. The Employment Tribunal judgment[4]This can be conveniently divided into three sections. First, the issue before the Employment Appeal Tribunal. Second, the facts as found by the Employment Tribunal. Third, the reasons of the Employment Tribunal for reaching the decision it did. I deal with each in turn. First, the issue before the Tribunal. This is conveniently summarised in paragraphs 1 – 3 of the Employment Tribunal Decision as follows:
"1 The claimant claims unfair dismissal. Under Section 108 Employment Rights Act 1996, she must show that she has one year's continuous employment. In her claim she claimed that her employment began on 22 February 2005 and finished on 11 April 2006. That would have given her the necessary one year's service. 2 The respondent initially admitted this but the Response was amended to allege a later start date of 8 May. 3 By Section 211 of the Employment Rights Act 1996 – An employee's period of continuous employment for the purposes of any provision of this Act– (a) subject to sub-sections (2) and (3), begins with the day on which the employee starts work."
The Chairman goes on:
"Sub-section (2) deals with persons under 18 and sub-section (3) deals with a special situation relating to breaks in employment."
I infer and agree that the Chairman concluded that sub-sections (2) and (3) have no relevance to this case.[5]The facts found by the Employment Tribunal are conveniently summarised in paragraphs 4-8 of the judgment: 4. My fact finding has been hampered by the respondent's failures in respect of record keeping and the loss of their records. I fully understand the claimant's views that this is unsatisfactory - I find it unsatisfactory myself - but I do not think that the respondents have been holding back records which would be to their disadvantage. I think instead that the problem is that the records were not properly kept at the time. However, the facts as I find them are based largely on the claimant's own evidence. 5. On 22 February the claimant attended an interview and was offered a job. She did not receive any formal job offer. 6. The respondents have produced an undated document which purports to offer her a position of night support worker subject to confirmation and various other matters (which, on the face of this document, do not include her vetting) and says "your start date will be the 8 May at 8 o'clock. In the absence of any evidence from the person who sent it or from anybody else who was there at the time, I find it difficult to accept that such a letter was sent because I cannot see that anyone knew at the time of the job offer that the job start date would be 8 May. 7. The offer of employment which the claimant accepted was subject to the vetting procedures. It was anticipated, at the time, that vetting procedures would take two or three weeks. The training day was on 8 April and the hope was that she would have received the vetting clearance and would be able to start work immediately after that. 8. By the 8 April for one reason or another, the vetting was not complete. Nevertheless she attended that training day but she was not paid for it. By 21 April she was on the respondent's payroll but she was not receiving any pay. Her pay record shows her as doing no hours and receiving no money. At last, on 6 May the vetting form was returned by the police and she was telephoned by the manager and she actually started working on 8 May. Those are the basic facts." The reasons given by the Chairman are found in paragraphs 9 – 14 of the judgment:
"9. Taking it simplistically Section 211(1)(a) says that employment "begins with the day on which the employee starts work" and the date she started work was 8 May. However she contends, and I have to consider, whether an earlier date could be treated as being her start date. The only reported decision I have been referred to, which is The General Salvation Army v Dewsburv 1984 ICR 498. It is apparent from that case that the words "starts work" are used deliberately rather than the "date of employment". 10. In that case the claimant had been working part time on a monthly basis as a teacher. She was then taken on full time and her letter of appointment said that her employment commenced on 1 May. She was paid monthly and so that was when the contract of employment began but the actual work began after that because the 1 May was a Bank Holiday. The respondents contended, in that case, that there had been a break in her employment between 30th April when her previous contract ended and 2nd May when she started work under the new contract. The Employment Appeal Tribunal said that she started work on 1 May and that "the day the person starts is the beginning of employment under the relevant contract". 11. Since then there have been further employment tribunal cases, some of which are reported in the ideas (it says ideas but it should read IDS ) handbook, but those don't assist me greatly. 12 The present situation [because it is] (I think it should be the present situation) is obviously rather different. The claimant who was employed on an hourly rate on an hourly basis. She was only paid for the hours that she worked. She was not off sick during this period. The fact of the matter was that until 6 May she could not lawfully start work. Although she had a valid contract of employment, it was a conditional contract up until she received her vetting certificate. I accept that it was a binding conditional contract but I do not accept the 22 February was the date on which she started work. 13. If 22 February is not the start date I next have to consider whether the training day on 8 April was the start of her work. There are First Instance authorities to suggest that training is not necessarily the start of employment. It seems to me that, in all the circumstances, that first day, for which she was not paid, was not truly the start of her employment. Therefore I think that was not the start date either. 14. The true start date for her employment is the one which common sense dictates, namely that she started work on 8 May. Although it is very unfortunate for her that that means that she does not have the one year's service which is needed to give her entitlement, that seems to me to be the only interpretation which I can reach. In those circumstances, she is not entitled to bring a claim for unfair dismissal and therefore her claim is dismissed."
The Review[6]By a letter dated 18 August 2006 Mrs Ochika applied for a review. That is set out at the beginning of the appeal bundle. She makes a number of points in that application for review which is not necessary to summarise. The matter came before Mr C F Sara sitting alone again and he refused the review under Rule 35(3) of the Employment Tribunal Rules of Procedure 2004 on the grounds that it had no reasonable prospect of success. In effect the application for a review was on the basis of challenging some of the documentary evidence that had been presented to Mr Sara at the Pre-Hearing Review. His order on the application for review is again found at the beginning of the appeal bundle. There has been no appeal against that order refusing a review. The Grounds of Appeal[7]The Grounds of Appeal are found in the appeal bundle at pages 6 and 7. They seem to me to be four in number and I have divided paragraph 7 of the Notice of Appeal into four sections. I will deal with each in turn: Ground 1:
"New Evidence was discovered which proved some of the document used were tampered with to alter their meaning." "
Prove (I think it should be proof) of my employment did not start on the date claimed by the respondent in accordance to their memorandum sent to all home managers." This point was taken by the Appellant before the Employment Tribunal on her review application. There has been no appeal from the decision refusing a review. There has been no application to reduce fresh evidence before the Employment Appeal Tribunal pursuant to paragraph 8 of the Employment Appeal Tribunal Practice Direction. Looking at the document submitted by Mrs Ochika I cannot read the documents as in any way showing what the Appellant contends them to mean or having the significance which she contends them to have. In my judgment there is nothing in this ground of appeal. Ground 2 :
"The respondent did not tell the truth in some of the statements they used. eg They said Mr Nick was no longer their member of staff but I found out Nick still works with the respondent and the respondent gave a false name."
The question of credibility at an Employment Tribunal is a matter for the Employment Tribunal as indeed is the weight given by the Employment Tribunal to any submissions made by any party's representative. In so far as this issue concerns Mr Nick I note that on 20 July 2006 a Chairman of the Tribunals at Exeter Mr J G Hollow issued a witness summons for the attendance of Mr Nick c/o The Regard Partnership: Appeal Bundle page 38. By an email 4 august 2006 Mrs Ochika informed the Tribunal that she no longer wanted Mr Nick to attend: Appeal Bundle page 40. In those circumstances I cannot see the relevance of Mr Nick or his evidence at all. There is no substance in this Ground of Appeal. Ground 3 :
"My employment begun on the 8 th April 2005 according to my Employment induction for which the respondent was supposed to pay me. (Detail in the review letter.)"
This is an issue that was considered by the Chairman: see paragraphs 8 and 13 of his judgment. There is no error of law there. Ground 4:
"My Employment was confirmed 22 nd February 2005 my Employment induction was on 8 th April 2005 my House induction was on 8 th May 2005."
This point was dealt with by the Chairman in his judgment: see paragraphs 5, 8, 12 – 14. There is no error of law here. My conclusion is that the Chairman's judgment at the Pre-Hearing Review on 15 August 2006 was that on the facts of this case as given and explained to him then the reality of the situation was that Mrs Ochika started work on 8 May. She was paid for the hours that she worked and those hours only and she did not in fact start work until 8 May. "Start work" is the phrase used in Section 211 of the Employment Rights Act 1996 and on the facts of this case the Chairman was quite clearly right to find that the start date was 8 May 2005. For those reasons there is no error of law and the appeal is therefore dismissed.