THE INDUSTRIAL TRIBUNALS

CASE REF:	610/08

CLAIMANT:			Thomas J Larmour

RESPONDENT:		Warden Bros Newtownards Ltd

DECISION
The unanimous decision of the tribunal is that the claimant did not have 52 weeks continuous service for the purposes of Article 140 of the Employment Rights (Northern Ireland) Order 1996 and that the tribunal therefore has no jurisdiction to hear the complaint of unfair dismissal.

Constitution of Tribunal:

Chairman:		Mr N Kelly
Members:		Mrs F Graham
			Mr P McKenna

Appearances:
The claimant appeared in person.
The respondent was represented by Mr G Skelton, a manager in the respondent company.
The issues

1.	The claimant withdrew his complaint of breach of contract by consent and that claim was dismissed.  Therefore the only outstanding issues for the tribunal to determine were:-

(i)	Did the claimant have the requisite 52 weeks continuous service for the purposes of Article 140 of the Employment Rights (Northern Ireland) Order 1996 (the 1996 Order)?

(ii)	If the tribunal had jurisdiction to hear the complaint was the claimant unfairly dismissed for the purposes of Part XI of the 1996 Order?

Relevant facts

2.	The claimant originally started work for the respondent company on 2 May 2006 as a Sales Assistant in their department store in Newtownards, Co Down.  Until July 2007, the claimant worked in the Hardware and Gardening Department which was managed by Mr Gary Brownlee.  In August 2007, the claimant left without notice to go to live in England.  He stated in evidence before the tribunal that he “just wasn’t coming back to work due to personal problems”.  

3.	The claimant contacted Mr Brownlee on 7 August 2007 and told him that he was in England.  He also told him that he did not intend coming back to Northern Ireland.  Mr Brownlee told the claimant to ”keep himself right” and to send in a letter of resignation.  The claimant did so in a letter dated 9 August 2007.  This letter was unambiguous and stated:-

“Further to my conversation with Gary on Tuesday 7th August, I am writing tendering my resignation from Wardens.”

4.	The claimant was paid any outstanding salary due to him by the respondent at the end of August 2007 as part of the ordinary monthly payment of salaries.  

5.	The claimant came back from England approximately ten days after sending his letter of resignation.  Mr Skelton, a more senior manager than Mr Brownlee, learned that the claimant was back home in Newtownards and arranged to meet him at the car park beside the respondent’s premises to give him some post which had been left with the respondent by the claimant’s former landlady.  That meeting ended with the claimant shaking Mr Skelton’s hand and apologising for ‘letting the company down’ by not working his notice before going to England.  The claimant had enquired about his P45 and had been told that it would follow in due course.

6.	A few weeks later, in early September 2007, the claimant contacted Mr Brownlee to ask if “there was any chance of me coming back to work”.  When giving evidence to the tribunal, the claimant stated that he felt this request by him ‘was cheeky’.  Mr Brownlee agreed, subject to Mr Skelton’s approval.  The claimant rang Mr Skelton and arranged to meet him in his office.  The meeting took place on a Friday in September 2007.  The claimant and Mr Skelton discussed various vacancies and working patterns that might be available.  The meeting ended without a definite offer of employment.

7.	On the following Monday, Mr Skelton telephoned the claimant and told him he could start work on 1 October 2007.  He would commence in his old department but would move shortly to work in the Christmas Shop within the department store.  

8.	The claimant resumed work on 1 October 2007 and at that point still had his old clocking-in card and his keys to the premises.  

9.	The claimant was not sent his P45 by the respondent.  The respondent paid salaries on a monthly basis and before the P45 was sent out to the claimant following his payment of outstanding salary at the end of August 2007, the claimant had had his conversations with Mr Brownlee and Mr Skelton about resuming employment with the respondent.  The claimant was nominally on the pay roll for September 2007 and received a tax rebate of £72.73 at the end of that month.  No salary was paid by the respondent to the claimant in respect of September and no statutory deductions were made by the respondent in respect of September.  

10.	The claimant was contacted by the Inland Revenue in November 2007 about his earnings for that tax year.  The claimant alleged that he was then told by Mr James Reynolds, the respondent’s accountant, that he, the claimant, should tell the Inland Revenue that he had been on unpaid leave during his absence in August and September 2007.  Mr Reynolds denied that this conversation had ever taken place and there was no documentary evidence in respect of this conversation.  The tribunal concludes that even if it had taken place in the terms described by the claimant, it would have been a conversation which took place long after the relevant events in August and September had concluded and, even taking the claimant’s version at its height, was no more than a device to minimise paperwork with the Inland Revenue.  In the tribunal’s view it could not properly be understood to have been some sort of retrospective arrangement of unpaid leave during the period following the resignation letter dated 9 August 2007 up to the resumption of employment on 1 October 2007.  

11.	The claimant’s employment came to an end following a meeting with Mr Skelton on 10 January 2008 when the claimant was told that his employment was not ‘being renewed’.  The use of the phrase ‘not being renewed’ is puzzling because the claimant appears to have been working at that stage on an open-ended contract of employment which did not require a renewal.  It was also clear that the basic requirements of the statutory dismissal procedure had not been observed by the respondent.  

Relevant law

12.	Article 126 of the 1996 Order provides:-

“(1)	An employee has the right not to be unfairly dismissed by his employer.”

	Article 140 of the 1996 Order provides:-

“(1)	Article 126 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.”

13.	Article 8 of the 1996 Order provides:-

“(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)	Subject to Paragraph (4) any week (not within Paragraph (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,

(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.”

Decision

14.	The claimant left his employment with the respondent without notice in early September 2007 and made it plain to his manager, Mr Brownlee, that he did not intend coming back to Northern Ireland.  The claimant then furnished an unambiguous letter of resignation.  When he returned shortly thereafter to Northern Ireland, the claimant met with Mr Skelton to get some post which had been left with the respondent.  There was nothing in that meeting which suggested that there was, through custom or practice, or otherwise, any arrangement whereby the claimant was to be regarded as continuing in employment for any period following his resignation.  Furthermore, the claimant acknowledged in evidence that he had to actively seek re-employment with the respondent in September and that he did not resume employment until 1 October 2007.  Even if the alleged conversation with Mr Reynolds had taken place in the terms described by the claimant, that conversation could not have had the effect of retrospectively altering the circumstances in which the claimant left his employment with the respondent in early August 2007.  

15.	The tribunal therefore concludes that there was a break in the claimant’s employment with the respondent throughout most of August and all of September 2007 and that the circumstances were such that the two separated periods of employment could not be linked for the purposes of establishing a single period of continuous employment.  The claimant did not have 52 weeks continuous service ending with the effective date of termination. The tribunal therefore has no jurisdiction to determine the claim of unfair dismissal. That remains the position even though the respondent had failed to comply with the requirements of the statutory dismissal procedure and even though the tribunal would have concluded that the dismissal was automatically unfair if it had jurisdiction.

16.	The tribunal therefore dismisses the claim of unfair dismissal.

Chairman:

Date and place of hearing:	29 October 2008, Belfast
Date decision recorded in register and issued to parties: