Appeal No. EAT/1160/94

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 October 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR K M HACK JP
MR R JACKSON

MRS MOIRA INNESS	APPELLANT

GATESHEAD METROPOLITAN BOROUGH COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	
For the Respondents	MR GAVIN MILLAR
(of Counsel)
The Solicitor
Gateshead Metropolitan Borough Council
Civic Centre
Regent Street
Gateshead
NE8 1HH	

	MR JUSTICE MORISON (PRESIDENT):     This is an appeal against a decision of an Industrial Tribunal held at Newcastle-upon-Tyne on 6th October 1994. By that decision the Chairman of the tribunal, sitting on his own, concluded that the applicant, Mrs Moira Inness, was not entitled to present a complaint that she had been unfairly dismissed because she had not been continuously employed by the respondents, Gateshead Metropolitan Borough Council, for a period of not less than two years, and accordingly, her Originating Application was dismissed.

	The circumstances of Mrs Inness’ employment are set out in the decision of the Industrial Tribunal. In essence, she worked at Gateshead College under seven different contracts of employment. The first contract was for the academic term September to December 1989. Under the terms of her contract she was required to teach Cordon Bleu Cookery to students who had enrolled on the course. That was a course which fell within the department called “Personal Services”. It involved two hours of teaching per week on 12 different occasions, but we readily accept what we were told by Mrs Inness who conducted her own appeal, that, although she had face to face teaching for two hours for which she was paid, she undertook necessary duties which would have occupied her for longer than that each week. It would appear, although the Industrial Tribunal do not mention it, because the point may have become overlooked by the applicant, that there was one evening in January 1990 when she attended the College in order to supervise the enrolment of students for the forthcoming term. But at the end of her contractual period at Christmas time, she was told that she would not be required for the next term because there were not sufficient students for it to justify running the course. We understand that 12 students were required as an absolute minimum, and by the time that her contract ended, there was no commitment by 12 students to do the same course the next term.

	Her next appointment, her second contract, recommenced on 10th September 1990 on a short term contract which terminated on 19th December 1990. That contract involved her working nine hours a week doing seven hours day time work on teaching child care skills and environmental issues, and two hours further on a Cordon Bleu course. 

	She had successive contracts thereafter on a termly basis, involving different duties and different hours of work. Her last termly contract expired in June 1992. She was told that she would not be re-employed because at that time she did not meet the criteria for re-employment and she complained about that decision by invoking the grievance procedure.

	The question at issue before the Industrial Tribunal was, therefore, whether the first contract could be aggregated with the remaining termly contracts. If it could not be, then she would have less than the requisite two years of continuous employment. If it could be, then a further question arose as to whether the termly contracts themselves could be aggregated one with another.

	On the first question, the Industrial Tribunal Chairman concluded, having regard to the statutory provisions, that there was, in his words “no nexus” between her first period of employment and the subsequent employment which commenced in September 1990. He was of the view that there was a clear cessation of employment for a period of nine months and that this period broke any continuity between the first three months of employment and the following employment which ran from September 1990 on a term by term basis until June 1992.

	He directed himself when considering the second question to the case of Ford v Warwickshire County Council [1983] ICR 273, and to the decision of the House of Lords in Fitzgerald v Hall Russell & Co Ltd [1970] AC 984. He directed himself that he was required to apply the benefit of hindsight and look back at the period of employment overall to judge whether in his view there had been a cessation of work falling within the statute.

	The statutory provisions we will take from s.210 and 212 of the Employment Rights Act 1996. S. 210(5) provides:

“A person’s employment during any period shall, unless the contrary is shown, be presumed to have been continuous.”

S.212(3) provides:

“Subject to subsection (4), 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,
(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, or
(d) 	absent from work wholly or partly because of pregnancy or childbirth, 
counts in computing the employee’s period of employment.”

It is to be noted that subsection (1) applies to:

“Any week during the whole or part of which the employee’s relations with his employer are governed by a contract of employment counts in computing the employee’s period of employment.”

If follows, therefore, that subsection (3) is concerned to analyse the position of an employee who, during the relevant period, is not in an employment relationship with his employer in the sense that there is no existing contract of employment in force.

	We therefore consider that Mrs Inness is justified in drawing attention to the fact that the learned Chairman of the Industrial Tribunal appeared wrongly to place reliance on the fact that during the relevant breaks in her employment she was able to work for other people during holiday periods, and that she was not entitled to any contractual holiday pay. It seems to us that neither of those features has any effect on the question at issue in this case, which is whether it could be said that she was absent from work on account of a temporary cessation of work when she was not employed at the College between December 1989 and September 1990, bar, possibly, two hours when she may have turned up in January 1990.

	There is much case law, as we have indicated, on the question of whether an employee is absent from work on account of a temporary cessation of work. Essentially, as it seems to us, provided that the tribunal looks backwards in the way it is required to do and then applies a judgment, it is essentially a question of fact for the Industrial Tribunal with which this Court will traditionally be reluctant interfere. That point was stressed by Lord Diplock in the Ford case at page 285 between C-D, and Lord Brightman at 291 between D-E. Furthermore, we consider that the case of Flack v Kodak Ltd [1991] IRLR 203 is likely to be of assistance to tribunals in their approach to this question. There, Lord Woolf commented that the decision of Lord Diplock needs to be understood in the context in which he made his remarks. It is suggested that Lord Diplock was inviting what has been called a ‘mathematical formula’ which an Industrial Tribunal in the Flack case had adopted, but as is apparent from the decision of the Court of Appeal in that case, such an approach is not correct. What the Court of Appeal is emphasising is that a judgment must be made on all the relevant circumstances which surrounded the period in question, having regard to the nature of the employment, the anticipation of the parties and so on.

	We, at the end of the day, have not been persuaded by Mrs Inness who has, if we may say so, conducted her appeal with conspicuous ability, to the view that the Industrial Tribunal Chairman has erred in law in the answer which he arrived at to the first question. We should make it plain that in paragraph 14 of the decision where he says that: 

“...the employment break exceeded the period of 26 weeks referred to in paragraph 9 of Schedule 13 to the Employment Protection (Consolidation) Act 1978”.

was plainly a reference to the submission which the applicant had made to him, namely that her case is analogous to that of a teacher being re-engaged after 26 weeks absence following sickness or maternity, where there would not be a break in continuity. The capping of the period of 26 weeks does not apply in a case where the tribunal in concerned to examine absence from work on account of a temporary cessation of work. We are not persuaded that this is an indication that the Industrial Tribunal Chairman has misunderstood the legislation which is very explicit on this point, as s.202(4) makes clear; as was equally clear in the predecessor provisions in Schedule 13.

	Accordingly, we are, as it seems to us, obliged to accord to the Industrial Tribunal a due margin of appreciation, it being the fact finding tribunal. It seems to us that the decision which the Chairman arrived at was one which he was entitled to arrive at on the evidence before him. 

	Mrs Inness suggested that she had been told in December 1989 that she could come back in September 1990, but as she frankly admitted, there were two uncertainties about whether she would resume with the College or not. The first was whether there would be sufficient funding and whether sufficient numbers of students would enrol for the course if there was sufficient funding. And secondly, whether she herself would be the person whom the College would employ to teach that course if such a course was run. 

	It seems to us perfectly clear, in those circumstances, that there was no holding out or sensible expectation that she would be employed again by the College in September 1990, having regard to the uncertainties to which we have just drawn attention. Those were matters which the Industrial Tribunal were entitled to say properly led to a conclusion that there was no nexus between her first period of employment and her subsequent periods of employment.

	Before leaving the decision, we would like to add this. Nothing that we have said in this case should imply that we were of the view that there was any legal impediment to aggregating the termly contracts which she enjoyed  from September 1990. That was not a point which we are required to deal with having regard to our decision on the first question. The question as to the aggregation of teachers’ short term contracts which are on a termly basis is one which will need to be considered at some time in the future. It is to be noted that a concession was made by Counsel in the Ford case that there could be aggregation, but it does not seems to us that it would be safe to assume that the concession was rightly made. But equally, we do not wish to imply that it was not rightly made.

	In these circumstances, we must dismiss the appeal. There were other points raised in the appeal, but these are now not being pursued. Accordingly, this will be the end of the dispute between these parties in relation to Mrs Inness’ dismissal by the Gateshead Metropolitan Borough Council.