Appeal No. EAT/613/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 27 February 1995

	Before

	THE HONOURABLE MR JUSTICE BUCKLEY

	MR T S BATHO

	MISS A MADDOCKS

MR C BIRD	APPELLANT

AKER CONTRACTING PLC	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR H FORREST
(Solicitor)
Humberside Law Centre
95 Alfred Gelder Street
Hull
HU1 1EP

For the Respondents	MR S A SALUJA
(Solicitor)
Paull & Williamsons
Investment House
6 Union Row
Aberdeen
AB9 8DQ

	MR JUSTICE BUCKLEY:   This is an appeal from a decision of 4 March 1994 of an Industrial Tribunal sitting at Hull.  It raises an interesting and somewhat surprising point to our minds.  Surprising, in the sense that it is not apparently covered by previous authority.

	Assume an employee, having been employed for some period of time, for example in excess of two years, is then made redundant and is actually paid the proper and fair redundancy payments there then follows a relatively short break and then, for whatever reason, the employee is re-employed for a short period and for some reason dismissed.  Further, the second period, is not long enough to qualify to support an unfair dismissal claim, can the employee pray in aid the previous period to make up the qualifying two years.  In other words, can he pray in aid paragraph 9 of Schedule 13 to the Employment Protection (Consolidation) Act 1978, to the effect that the period between the two periods of employment should be regarded as only a temporary cessation of work and that the two can be run together.  

	That he should be able to do so strikes this Tribunal as strange in the extreme, and it may well be a point that the legislature might wish to consider.  However, before I return to the facts of this case, the reason we say it is a point that might justify consideration by the appropriate body, is that the parties before us are agreed that as the law stands there is no absolute bar to such an application, and that the authorities go no further than suggesting that the fact of the redundancy would be one of the matters that a Tribunal should consider and we have received no submission from Mr Saluja appearing for the Respondents that that in itself could be decisive as a matter of law.

	Returning to the facts of this matter, they can be very briefly stated and I take this from the Reasons of the Tribunal: 

		"2.  .... The applicant had been employed as a radio operator by the respondents from 10 June 1988 through to 3 May 1993.  There had then been a break in employment and he had been re-engaged by the respondents on 23 June 1993 and then that re-engaged period of employment had terminated on 8 September 1993".  

	The first period, as I have indicated, came to an end because of redundancy.  

	The Tribunal concluded in paragraph 5 as follows, and it really is the decisive paragraph of the Reasons and I will read it in full:

		"5.  Notwithstanding the contents of the respondents' representatives' letter, and particularly the penultimate paragraph thereof, the evidence in the tribunal's view quite clearly shows that there was intended to be a complete and permanent break in employment when the applicant was made redundant and paid redundancy and pay in lieu of notice entitlements in May 1993.  The tribunal cannot find evidence that there was intended to be a temporary cessation of work that would bring the applicant within the provisions of paragraph 9 of Schedule 13 to the Act and in those circumstances the tribunal are unanimous that they have no jurisdiction to hear a complaint for unfair dismissal as the applicant cannot qualify with sufficient continuity of employment to make such a complaint to the tribunal".

	Mr Forrest, on behalf of the Appellant submits, and submits with force, that it is plain from that paragraph even reading the Reasons as a whole and not approaching it unreasonably technically, that the Tribunal had gone wrong in law.  He makes two submissions.  The first is, that the question of intention is not decisive.  What the parties intended is only one of the factors to be considered.  

	Secondly, which is perhaps an alternative way of looking at the same submission, that it is clear that the Tribunal never adopted an over view.  That is, they never looked back with hindsight to see the whole picture in perspective, nor did they balance the interruption, the cessation of work, against the overall period of work to see whether it could sensibly and fairly be regarded as temporary or not.  And in that the Tribunal erred in law because the authorities are plain.  They must look at all the circumstances.  

	Mr Saluja sought to resist those submissions by urging that we should read the Extended Reasons as a whole, we should not approach them like a conveyance or any other document which falls to be strictly and technically construed, and he urged that if we do that, we will see that the Tribunal has set out the evidence and the history of the matter before they arrive at paragraph 5 and that the fair interpretation of their Reasons is that they did have all the relevant matters well in mind.  

	Certainly, we can go this far with Mr Saluja that we do not, and would not read Reasons like this in any technical or fanciful way.  Of course, it must be right to look at it all in context and adopt a sensible approach to it.  But however much we do that, it does seem to us that this Tribunal has gone wrong in law, in that they have adopted a wrong approach to the task in hand.

	It is very difficult, in the light of paragraph 5, which is after all the conclusion of the Tribunal and follows a recital of the history and the evidence, to see that they have done other than regard "intention" as decisive.  In particular, we refer to the second half of that paragraph which we have already quoted.  The sentence beginning: "The tribunal cannot find evidence that there was intended to be a temporary cessation of work that would bring the applicant within the provisions of paragraph 9 of Schedule 13 to the Act" and so forth.  

	It does seem to us, from that sentence above all others, that they really did regard the intention of the parties as paramount.  Indeed, although, as Mr Saluja indicated, one does find looking back at the recital of the evidence, the history of this matter and indeed, the relevant dates, it is perhaps surprising that one does not find any reference to the actual period, how long the period was.  One can work it out for oneself of course, from the dates, but the fact that the period between the employments is not identified other than by date, perhaps does indicate that the Tribunal did not focus on the length of that period in the overall context as indeed they should have done.

	So we have concluded that the Tribunal did adopt a wrong approach in law.  We, of course, stress that we are not judging this matter in their place.  We think that this is a case that should go back to the Tribunal to reconsider adopting the right approach and we are not intending to give any indication that they came, at the end of the day, to the wrong answer.   
	If the Tribunal, apply the right test, which is to look at all the circumstances, to consider the length of the relative periods and all the other matters that they have considered, of course they are entitled to focus on the redundancy and the intention of the parties as part of the circumstances.  If, when they have done all that they come to the same conclusion, then that is a matter entirely for them.  We are not seeking to push them in one direction or the other, simply to ensure that they adopt the right approach.

	The decision is that this appeal be allowed and the matter remitted to the Tribunal to reconsider in the light of this judgment.  

	The only other matter we would like to comment on is to commend both Mr Forrest and Mr Saluja for their most helpful and excellent submissions.