Appeal No. EAT/353/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 13 May 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MR J D DALY

	MISS C HOLROYD

DEVONPORT MANAGEMENT LTD	APPELLANTS

(1) R G GRANT (2) I W McCOMBES	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR S BURNETT
(DIRECTOR OF
OPERATIONS)
Engineering Employers' 
Western Association
Engineers House
The Promenade
Clifton Down
Bristol BS8 3NB

For the Respondents	MR B CARR
(OF COUNSEL)
Rowley Ashworth
247 The Broadway
Wimbledon
London SW19 1SE

	JUDGE HULL QC:  This is an appeal to us by Devonport Management Ltd from a decision of the Industrial Tribunal sitting at Plymouth on 21 and 25 February 1992.  There was an application to that Tribunal in respect of the dismissal of two apprentices, Mr Grant who is now aged 23 and Mr McCombes aged 24.

	Their apprenticeship began as foundrymen on 1 September 1986 in Devonport Dockyard which then, of course, was controlled by the Secretary of State for Defence.  We understand from the papers that they were very promising and capable young men.  They were 16 then and they did not actually enter into the deeds of apprenticeship which we have been shown until 2 March 1987 (the 2 deeds are at pages 10 and 14 of the supplementary bundle put before us); and the deeds provided in each case that each of these young men should serve an apprenticeship of 4 years, no months and no days, beginning 1 September 1986 and ending 31 August 1990.  In the usual way, the parties to those deeds were the fathers of the two young men and the Secretary of State.  Provision was made at the end of one of the deeds, at page 13, for the discharge of the deed on completion of the apprenticeship on 31 August 1990, which was the expiry date of the deed.

	All went well at first but in 1989 a very unfortunate situation developed.  The foundry was to be closed and the prospect of employment as a skilled foundryman in the dockyard ceased to exist.  That was a matter of concern to the Amalgamated Engineering Union.  It was of concern to the employers and no doubt to these two young men as well.  Various letters were written, some of which we have seen.  There was a letter written on 4 July (page 5 ) by the Chief Training Officer to another member of management, a Mr Smerdon, saying that these young men should convert from apprentice foundrymen to apprentice fitters and turners.  Apparently there was also some suggestion that they might have become shipwrights, but it was decided that they should convert to being fitters and turners.  There being something like a year to run under their indentures of apprenticeship, it was suggested that these should be extended by a year; they should be accepted, with the approval of course of the union, as apprentice fitters and turners.  Clearly they could not complete sufficient training in just one year.  What was said by Mr Mears on this occasion was that they should add one year to their apprenticeship overall.

	There were various other letters which referred either to adding a year or to adding twelve months and on 15 August Mr Mears wrote to the parents of these two young men, Mr Grant Snr and Mr McCombes Snr.  He set out the situation.  At that stage it was believed that there would be employment for fitters and turners and that therefore it was useful for these young men to develop a skill in that trade and become qualified fitters and turners.  Mr Mears wrote on 15 August:

"Additionally a further one year will be spent as an Apprentice, this to be recorded on the Deed of Apprenticeship and will involve practice of the new Craft skills in an "On-the-Job" environment."

It was suggested they would spend 6 months in basic training, 6 months in the workshop, 6 months on board submarines and 6 months on board surface vessels, studying the new trade of fitter and turner.  This was all in the context of their being capable young men who had done very well.  That was what was agreed to.  It was suggested that this should be subject to an endorsement on the Deeds of Apprenticeship.  The Deeds were altered by agreement and what the agreement said was this:

"Pursuant to an agreement between the Apprentice and the Guardian and the Employer, dated 14/8/89, this Apprenticeship shall, from that date, be in the Craft of Fitter and Turner.

The Amalgamated Engineering Union has been consulted and accepts that on satisfactory completion of the Apprenticeship, the Apprentice shall be recognised as having full Craft status as a Fitter and Turner."

There was nothing about the extension that had been mentioned, although there was the reference to the agreement which had been reached between the parties and the evidence of that agreement in the documents, so far as we can see, is that there was to be an extension of a further 1 year of the apprenticeships or in one case it was mentioned as 12 months.  So there was no doubt in anybody's mind that that was part of the agreement.

	What happened was that unhappily the market again changed very seriously and it was decided that none of the apprentices whose apprenticeships expired in 1991, of whom there were something like 40, could be taken on.  Most of them were fitters and turners.  So the hopes of the parties when they entered into this arrangement were all disappointed and it was not going to be possible to take on these young men as fitters and turners.  They were told that not at the end of the year, but on 4 September 1991.  

	In fact what had happened was that although they were still receiving some training, during this last year which was tacked on to their apprenticeships, they were treated for many purposes as though they were fully qualified tradesmen.  They were paid the full rate for tradesmen and in certain other ways they were treated as tradesmen rather than apprentices.  The contention which was put forward on their behalf was that in fact at the end of August 1990 they had ceased to be apprentices and were thereafter tradesmen.  The importance of that was that there is a great difference in employment law between declining to take on an apprentice when his apprenticeship is over and dismissing a person who is employed in ordinary employment.  In general an apprentice who is not taken on at the end of the period of his indenture will not be treated as unfairly dismissed or entitled to any of the other benefits which an ordinary employee is. 

	The employers said "No - they were still apprentices but their apprenticeships expired on the Friday 6 September when the other apprenticeships expired, those who had been taken on a year later".  That was the contention for the employers who by now, with the yard being privatised, were Devonport Management Ltd.

	The Industrial Tribunal considered the matter with considerable care.  They rightly directed themselves, as it appears to us, that what was said on the pay-slip or indeed the amount on the pay-slip could not be conclusive, and first and foremost they had to look at what was agreed.  There was no doubt there was an agreement and it was therefore the task of the Tribunal, like any other Tribunal or Court, to say to themselves - "What did these parties on a true objective view agree?".  They looked at the letters I have referred to.  Of course they heard some evidence and they said "We do not think that these young men ceased to be apprentices in 1990, on the contrary it was agreed that their apprenticeship should be extended for one year."  When did it expire?  The answer, said the Tribunal, with what appears to us to be a glimpse of the obvious, was "at the end of one year after it would otherwise have expired" - that is to say of course on 31 August 1991.  The original apprenticeships would have expired on 31 August 1990.

	Now we are told that that is a conclusion which defies reason.  But it was on the face of it simply applying what the parties had agreed.  A year means a calendar year.  There is no difficulty about that.  It means 365 days in an ordinary year or 366 days in a leap year.  The employers, having not told these young men about their fate until 4 September, of course wished to lump them in with the other apprentices and put forward before us a concept for which there appears to be no clear evidence, that there is something called an Apprentice Year; we suppose rather like an academic year.  Just as one might say, if one was at university , "when someone talks about a year he means the academic year, so in this case of these two apprentices, having their apprenticeship extended by a year, it meant "for the apprenticeship year".

	That was not the subject of any evidence, but we are told by Mr Burnett, who appears for the Appellants here, that it is self-evident and well-known; that anybody with experience in industry would know that when the apprenticeship was extended by a year it would in fact expire at the end of the next apprenticeship year, although that was nowhere spelled out, certainly not in the amendment to either Deed, which as I say was silent on the subject in spite of the agreement which had been reached.  The answer to that seems to be self-evident, with all respect.  If that was common knowledge and if any sensible person knowing industry and this particular industry would know that, what were the Industrial Members of this Industrial Tribunal doing?  They must have known that as well as anybody else, but they reached a quite different conclusion.
	
	It seems to us impossible to say that they went wrong.  What they did was to apply the ordinary meaning of the English language by saying "a year means a year".  If they had found a common understanding to the contrary they would have said so - they did not.  So far from that being something they were not entitled to do, it seems to us that if people say that a year means a year there must, before they can be criticised, be some clear evidence of a common understanding to the contrary on the part of not merely the employers but also the employees, the apprentices, the union and so forth.  There was no such evidence here.  It therefore appears to us that this Industrial Tribunal was perfectly entitled to say "this apprenticeship ended on 31 August 1991.  Therefore, during the last few days on which these young men stayed at work, they were no longer apprentices.  They were working as tradesmen.  Therefore, if they were to be dismissed that would attract the ordinary incidents of employment laws".

	It is clear that this Tribunal might, had the evidence been different, have reached a different conclusion; they might have said that it was the common understanding of the parties that these apprenticeships should go on until the end of the other young mens' apprenticeships.

	They might have said, "when people talk about a year in this context of course they mean an apprentice year.  It is like an academic year".  They might have said - "well for these last few days these young men were really in limbo, they had not actually achieved the status of being employed persons" - all those were conclusions which they might have reached, depending of course on the evidence, and on their experience and understanding of the situation; but they did not.  In our view this Industrial Tribunal were perfectly entitled to say that a year meant a year and to say that thereafter, if these young men continued to be employed, they were no longer employed as apprentices.  

	In spite of what has been said to us by Mr Burnett, it appears to us as impossible to say that this Industrial Tribunal made any error whatever and, doubly so, impossible to say that they made any error of law.  They arrived at findings of fact which they were well entitled to, and did their job.  

	In those circumstances we have to dismiss the appeal.  

	There is a request to us to award costs in this case and that we do, under our rules, only if it appears to the Appeal Tribunal that the proceedings were unnecessary, improper or vexatious.  It is said these proceedings are unnecessary or improper in that the appeal was bound to fail.  Mr Burnett says that that is not so and he points to the fact that this appeal was pursued without any decision by the Appeal Tribunal's Officers to set it down, or indeed by any Judge of the Appeal Tribunal to set it down, for a preliminary hearing on the ground that it appeared that there was no merit, no point of law.

	We want to say that we reject that last submission.  It may or may not appear plainly to the officers of this Tribunal that an appeal seems only to relate to matters of fact.  There may be, as in this case, a detailed argument which appears at first sight at any rate to relate to matters of law; and therefore the mere fact that an appeal is not set down under the practice direction for a preliminary hearing is not in point in deciding whether in fact it has been pursued unnecessarily and improperly.

	We also note that this was a case in which the employers were minded to ask for costs in front of the Industrial Tribunal, so they can hardly complain that an application is now made against them; but having considered the matter as carefully as we can, we are not satisfied that this appeal comes up to the fairly high standard of impropriety which is envisaged by Rule 34; or that there has been blameworthy behaviour by the employers in pursuing it.  Certainly we are not satisfied that it was pursued in bad faith or anything of that sort.  We are not satisfied that this is a case in which it would be proper to award costs against the employers.