MR S HUSSAIN v ACORN INDEPENDENT COLLEGE LTD [2010] UKEAT 0199_10_0809

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0199_10_0809Case No Appeal No. UKEAT/0199/10Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S HUSSAINAPPELLANTACORN INDEPENDENT COLLEGE LTDRESPONDENT
Before
His Honour Judge McMullenDate 8 September 2010
[1]APPEARANCES For the Appellant MS N CUNNINGHAM (of Counsel) Instructed by: Messrs Lawana & Co Solicitors 274 Hither Green lane London SE13 6TT For the Respondent MR K HARRIS (of Counsel) Instructed by: Messrs Harold Benjamin Solicitors Hill House 67-71 Lowlands Road Harrow HA1 3EQ SUMMARY JURISDICTIONAL POINTS – Continuity of employment The Claimant was employed on 26 April 2008 as a teacher to cover the illness of another until the summer exams. The contract came to an end on 8 July 2008. Quite independently the permanent teacher resigned by notice given on 8 July. By an oral and then written agreement the Claimant started a permanent job with the employer on 5 September 2008 which continued until he was dismissed on 12 June 2009. On the employer's challenge to his claim of unfair dismissal, on the ground that he did not have one year's employment, the Employment Judge's decision to that effect was reversed as he incorrectly applied Ford v Warwickshire to the reason for the Claimant's absence of 7 weeks between the two contracts. The correct approach is to look at the reason for the termination of the first contract. It was not disputed that in hindsight the interval was short and temporary so the matter did not require remission. HIS HONOUR JUDGE McMULLEN QC This case raises one short point of statutory construction relating to the treatment by the Employment Right Act 1996 , section 213 of intervals between two periods of employment. The purpose of the case is to establish whether Mr Hussain had sufficient service to make a claim of unfair dismissal.[2]I will refer to the parties as the Claimant and the Respondent. Introduction[3]It is an appeal by the Claimant in those proceedings against a judgment of Employment Judge Snell, sitting alone at a PHR at Watford with reasons given on 5 February 2010. The Claimant represented himself but today has the advantage to be represented by Miss Naomi Cunningham, and the Respondent has been represented throughout by Mr Harris, both of counsel.[4]The Judge was asked to consider a single point relating to the Claimant's entitlement to bring a claim of unfair dismissal. He decided the Claimant did not have sufficient service which is by Employment Rights Act 1996 section 108, one year. He then gave directions for further conduct of the case, since it involved claims of discrimination[5]The Claimant claimed that he had been employed twice by the Respondent, but the gap between the two periods of employment was bridged so as to add weeks to his continuous service, sufficient to constitute employment for over 1 year. The Respondent said the breaks were not covered by section 212. The interval between the two periods did not count and thus the Claimant by his second period of employment had insufficient service. His claim of unfair dismissal was dismissed.[6]The Claimant appeals. It comes to a full hearing by orders of His Honour Judge Pugsley and His Honour Judge Hand QC. The legislation[7]Section 94 of the 1996 Act provides for an employee to have the right to claim unfair dismissal. The circumstances in which an employee is dismissed are described in section 98(1). A reflection on the two different forms of termination is given in section 97, which decides the effective date of determination and provides as follows:
"(1) … "the effective date of termination"-- (a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires … (c) in relation to an employee who is employed under a limited-term contract which terminates by virtue of the limiting event without being renewed under the same contract, means the date on which the termination takes effect."
[8]This gives access to the right to a claim of unfair dismissal under section 98. The limitation however provided by section 108 is as follows:
"108 Qualifying period of employment — (1) Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination."
[9]There are detailed rules of some antiquity now relating to the counting of time, for the purposes of establishing, in this case, one year's continuous employment. These rules are found in section 212, which provides in relevant part as follows:
"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. (3) … any week (not within subsection (1)) during the whole or part of which an employee is— (a) incapable of work in consequence of sickness or injury (b) absent from work on account of a temporary cessation of work, or (c) absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for any purpose. counts in computing the employee's period of employment."
[10]This case is concerned with section 212(3)(b), a temporary cessation of work of not more than 26 weeks.[11]The application of that subsection was the subject of two judgments of the House of Lords, in Fitzgerald v Hall Russell & Co Ltd [1970] AC 984 and, relevant to today's case, Ford v Warwickshire County Council [1983] ICR 273. Speeches were given by Lords Diplock and Brightman with whom Lords Keith, Roskill and Brandon all agreed. Lord Brightman gave a substantial speech, agreeing with Lord Diplock out of deference to the fact that the House of Lords was disagreeing with unanimous judgments of the Employment Tribunal, the EAT and the Court of Appeal, which all ruled against the Claimant. It is common ground that this case affords the answer to the appeal. The facts[12]The Claimant is a teacher of economics. He applied for a job at the Respondent independent college, but was unsuccessful. But by early 2008, the Principal of the college offered him work to cover for a teacher, Mr Urquhart, who was ill. On 25 April 2008 he started work on a temporary cover contract. He continued giving various hours of work, for which he was paid £30 each, until his last session on 8 July 2008. As it happened that coincided with the giving of notice by Mr Urquhart. He gave short notice (two days) of his resignation to take effect on 10 July 2008.[13]The circumstances obviously changed and by 25 July 2008 an agreement was made between the Principal and the Claimant that he should be employed on a permanent basis from the start of the new term, which was 5 September 2008.[14]Agreement was reached in writing on 7 August, during which exchange of correspondence there was the revealing comment by the Principal:
"I trust you are enjoying the summer break"
. That of course is understandable language to use between people engaged in the educational sector, where traditionally they observe a break away from their work, and so do the students away from them.[15]On 5 September 2008 a permanent contract was in place by which the Claimant was engaged as a teacher on £30,000 a year. It came to an end on 12 June 2009, when he was dismissed. It is not necessary to say anything about the circumstances of the termination of the second contract, for the first is the relevant issue. Why was that contract terminated? Was it in accordance with section 212?[16]The Employment Judge decided that what he described as the intervening summer vacation did not count for the purposes of continuity of employment and he said this:
"11. The issue, then, is whether the intervening summer vacation between the expiry of the temporary contract and the commencement of the permanent contract counts to continuity of employment. The legal test is looking back from 12 June, was the Claimant not working between 8 July 2008 and 5 September 2008 owing to a temporary cessation of work. Put another way, is this a Ford v Warwickshire County Council case? 12. I do not think it is. The temporary cover contract came to an end at the end of the 2008 summer term. A new contract then began at the beginning of the Autumn Term. The Claimant would not have had an expectation (as opposed to a hope) during the course of the temporary contract of further work post the termination of the temporary cover contract. As it happens he got the work by reason of later events. That is different from the position of expectation of further work that the Claimant had in the Ford case. 13. There was also an aspect of unfairness in the Ford case that no permanent contract was in place. There is no such unfairness in this case, because the first contract was genuinely a temporary cover contract. 14. I do not agree with the Claimant's submission that it does not matter what sort of contract was enjoyed either side of the summer holiday. One does have to look at the purpose of the first contract and the reason for its termination. Both relate to the fact that it was a temporary cover contract."
Arguments and conclusion[17]I will deal with the arguments of both counsel at the same time as I consider the authority. It is common ground that the approach of the Employment Judge is to look back from the end of the second contract, 12 June 2009, to the beginning of the first contract, 25 April 2008 to determine whether there was a temporary cessation of work.[18]The arithmetic is not difficult. This statute deals with weeks. In any week where there is any contract in existence the whole of the week counts. So, the period between April 2008 and June 2009 is 59 weeks and the interval, the subject of the dispute is seven weeks. Helpfully, Mr Harris accepts that there is no issue as to the nature of the period being short or temporary, subject to his arguments about the meaning of that in this case.[19]Remission of the Ford case, which was in favour of the Claimant, was determined by the Respondent's attitude to those two issues, which would otherwise be regarded as fact sensitive and the business of the first instance Tribunal. Thus, both counsel agreed that if I were to be in favour of Miss Cunningham's submission, I should decide the matter myself. The sole issue is whether the Employment Judge was correct in his approach to the application of the statute.[20]It is also common ground that the nature of the two contracts is unimportant. In Ford , the court was determining a case in the education sector where there were intervals during which the educational establishment was providing no work. Each contract was a fixed term.[21]The nature of a fixed term contract has changed over time. As originally enacted, it was in respect of finite dates but when the Fixed Term Workers Directive 99/70/EC was enacted regulations were introduced in the UK to give effect to it. The Fixed Term Employees Prevention of Less Favourable Treatment Regulations 2004 , changed the definition which had obtained until that time. What are now described as limited term contracts include contracts for a fixed term, where the date is precisely amenable, contracts for a task and contracts expiring on a particular event. This is made clear by Employment Rights Act 1996 section 235(2(a) and (2)(b), so that a contract made in contemplation of the performance of a specific task will end when that task has been performed.[22]It seems to me that what was agreed in this case was such a contract: Mr Urquhart was ill; his students required teaching and preparation for their exams. Mr Hussain filled the bill. The Principal and Mr Hussain knew that that was why he was being employed and as the students took their exams and left the college the work came to an end.[23]However, the specific nature of the contract in the arguments addressed today does not matter. It is apt to apply the reasoning in Ford in respect of bracketed fixed term contracts to this case, which is of a limited term contract, bracketed to a permanent contract.[24]What is required for all of these contracts is to find the reason for the termination of the first contract. In the examples given in the speeches in Ford , there is always a termination because by definition section 212 applies where there is no contract of employment, no work being done, no right in the employee to demand work, no obligation in the employer to provide it. There is no subsisting contractual relationship. The purpose of the subsection is to bridge the gap between the two contracts so as to join them together for certain statutory purposes. Relevant in our case is continuity of service of unfair dismissal.[25]The argument of Mr Harris is that the Judge was correct to hold that the first contract came to an end because it was a temporary cover contract, and it was adventitious that the Claimant got work a month or so later, by reason of the resignation of Mr Urquhart. The Judge made no error in his depiction of the expectation of further work characterised by paragraph 12 of the judgment, nor in his approach to what the Judge described as fairness. Mr Harris does not now seek to support the Judge's paragraph 14, since the nature of the contract, either side of the interval being limited term, fixed term, or indefinite duration does not matter for the purposes of submissions in this court.[26]The central argument is that the reason for the dismissal was the ending of the need for temporary cover and it was pure chance that there was a new contract entered into. It cannot have been the purpose of the legislation to allow for a subsisting relationship between the two, so as to establish unfair dismissal rights.[27]Miss Cunningham contends that the sole issue is one of causation. Once the contract has ended in the first place the only issue is to decide whether there has been a temporary cessation of work, which caused the dismissal. If it did, and if the Claimant was employed again, then the first and second periods are bridged with the interval in between counting for the purposes of one year's service.[28]In my judgment the answer to this case is given completely by Lord Diplock, in his speech. The first issue is to decide what Miss Cunningham said is a circular argument as to why it was that this contract ended. In one sense it ended because the term was limited and the work was performed. In another sense it was because there was no work to do. As Lord Diplock says at 283C:
"The fact that the unavailability of work had been foreseen by the employer sufficiently far in advance to enable him to anticipate it by giving to the employee a notice to terminate his contract of employment that is of sufficient length to satisfy the requirements of section 49 of the Act (which may be as long as 12 weeks), cannot alter the reason for the dismissal or prevent the absence from work following upon the expiry of the notice from being 'on account of a temporary cessation of work. … One looks to see what was the reason for the employer's failure to renew the contract on the expiry of its fixed term and asks oneself the question: was that reason 'a temporary cessation of work,' within the meaning of that phrase in paragraph 9(1)(b). There are many employments, of which teaching is one of the largest and most obvious, in which it is perfectly possible to predict with accuracy the periods in which the educational institution at which a teacher who is employed to conduct courses in particular subjects will have no work available for that teacher to do, i.e. during the three annual school holidays or during vacations at universities and other institutions of further education. As the evidence in the instant case discloses, it is a common practice to employ part-time teachers of courses at institutions of further education under successive fixed term contracts the length of which is fixed according to the duration of the particular course and expires at the end of it. In the interval between successive courses which may coincide with the end of one academic year at an institution of further education and the beginning of the next but may be considerably longer, there is no work available at the institution for the teacher to do, and he remains without any contract of employment until the course is resumed, when he again becomes employed under a fresh fixed term contract."
[29]Lord Diplock answers Miss Cunningham's rhetorical circularity point by saying that the real reason for the absence is that there was a cessation of work and Lord Brightman says the same at 290G:
"... the immediate cause of cessation of work is, in a sense, the expiry of the notices of dismissal; the effective cause is the anticipated cessation of work."
[30]The illustrations given by Lord Brightman are particularly apt to our own case (see page 290 at D to E).[31]Miss Cunningham is correct. The Judge erred in failing to take a decision from the standpoint of the end of the second contract and to look back. It is not a requirement of the statute that there be examination of the expectation of the parties of further work. His approach based on that in paragraph 13 cited above is incorrect. I further accept Miss Cunningham's submission that fairness does not come into this. It was a genuinely temporary contract. No issue arises about that. This is not about fairness, it is about construction of the statute. Further, as I have indicated, it does not matter what particular contract was formed either side of the divide.[32]Mr Harris was anxious to point out anomalies which might occur if Miss Cunningham's submissions were accepted. I am not deciding this case outside of the factual circumstances. This was an educational establishment. As Lord Diplock makes plain, educational establishments run generally on three terms. There are intervals in between, when the parties are not required to be at work. It is possible to extend this, as Lord Diplock did, to agriculture and seasonal work. This case, as Ford , is about the educational sector. I see no difficulty arising in the application of section 212, to cases where the interval consists of the summer holidays. Indeed, I revert to the Principal's language that the Claimant was enjoying a break from his teaching. That is exactly how it should be seen.[33]In my judgment, the contract came to an end as a result of a cessation of the work. The work was provided to the Claimant by the Respondent. It was to teach classes. They were the classes of Mr Urquhart. The need for that came to an end. The classes needed to restart in September. So, when classes resumed in September, instead of Mr Urquhart, Mr Hussain was doing the teaching. There were the two contracts in sequence. The interval was short and temporary. There had been a cessation of the work at the end of the first contract and so all of the ingredients for the purposes of section 212(3)(b) were in place and the Judge should have so decided. Jurisdiction[34]I draw attention to what Lord Diplock says about the categorisation of this kind of issue. Generally speaking in the trade, it is said that the Tribunal does not have jurisdiction to deal with an unfair dismissal claim brought by a person with less than one year's service except for certain precluded forms of discrimination. As Lord Diplock points out, the Tribunal does have jurisdiction. It was vested with jurisdiction in this case to decide that very issue and decided that he did not have one year's service. It is apt for a Judge alone at a PHR to decide these matters in appropriate cases. It might also be done by a three person Tribunal. But, in any event, the issue has been decided at a full hearing on live evidence where the Judge had jurisdiction to decide the matter. Disposal[35]The appeal is allowed. The answer to the preliminary question of whether the Claimant has sufficient continuity of employment to bring a claim of unfair dismissal is: "yes". So that can be decided by me. It began on 25 April 2008.