Appeal No. EAT/1021/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 July 2000

Before
HIS HONOUR JUDGE PETER CLARK
MR J R CROSBY
MRS T A MARSLAND

MR B E FOWLER	APPELLANT

SOUTHEND ON SEA BOROUGH COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR C GLYN
(of Counsel)
Appearing under the 
Employment Law Appeal
Advice Scheme	

JUDGE CLARK

1	This appeal, brought by Mr Fowler, the Applicant before the Stratford Employment Tribunal, was lodged on 28 July 1998.  His original complaint against his former employer, the Respondent Council, was presented on 6 January 1998.  He alleged that he had been unfairly dismissed from his post with the Council as a temporary Gardener, on 24 October 1997.

2	By their Notice of Appearance date 20 January 1998 the Council contended that he had been fairly dismissed  on grounds of his gross misconduct.  However they took a preliminary point; that regardless of the merits of the claim, which were in dispute, the Appellant had not completed 2 years continuous service so as to qualify for unfair dismissal protection under Section 108(1) of the Employment Rights Act 1996 (ERA).

3	The preliminary issue was heard before an Employment Tribunal sitting at Stratford (Chairman: Mr J W Walters) on 23 June 1998.  By a decision with extended reasons promulgated on 28 July 1998 the Employment Tribunal held that the Appellant had not completed 2 years continuous service.  Accordingly they dismissed the complaint.  It is against that decision that Mr Fowler brings his appeal.

4	Before the Employment Tribunal the Appellant appeared in person; he also drafted his own grounds of appeal.  He took a single point; he relied on what he described as his rights under EC law to disapply the provisions of Section 108(1) Employment Rights Act.  In effect, he, like many other Applicants with between 1 and 2 years continuous service, hoped for a favourable conclusion to the long-running Seymour Smith litigation.  That case has now run its course, culminating in the House of Lords decision (2000) IRLR 263 following the earlier reference to the European Court of Justice.  In short, it does not assist the Applicant as Mr Glyn, who appears on his behalf under the ELAAS pro bono scheme, acknowledges this morning.  The 2 year qualifying period stays.

5	The hearing of this appeal, in common with other similar appeals, had been stayed pending the final determination in Seymour-Smith, following the House of Lords decision in that case delivered on 17 February 2000.  The Registrar wrote to Mr Fowler on 15 March 2000, advising him that in the light of that case the Employment Appeal Tribunal proposed to make an order dismissing his appeal, but inviting him to show cause why such order should not be made within 28 days.

6	In response, Mr Fowler consulted his local Citizen's Advice Bureau, who wrote to the Registrar on 24 March.  In that letter Mr Beames, an Employment Caseworker, contended that the basis of Mr Fowler’s appeal was that he had been continuously employed by the Council for a period in excess of 2 years.  He was relying on Seymour-Smith to provide jurisdiction for his claim to be heard.

7	Accordingly this appeal was listed for preliminary hearing before us today.  We confess that we do not read the Appellant’s grounds of appeal as mounting a legal challenge to the correctness of the Employment Tribunal decision under domestic law, rather a reliance on EC law (which proved in the end to be unfounded) to disapply the domestic statutory provision.  Nevertheless, having heard Mr Glyn today, we shall formally allow him the opportunity to apply to me for leave to amend the Notice of Appeal to add a challenge to the Employment Tribunals findings based as they are on Section 212(3)(b) Employment Rights Act.

8	Having heard Mr Glyn’s submissions we should set out our reasons for allowing this case to proceed.  We begin with the facts as found by the Employment Tribunal.  On the evidence which they heard from Mr Fowler and Mr Owen, the park manager, they found that the Appellant’s first period of employment terminated on 29 October 1995.  It was common ground on the pleadings that that first period of employment began in May 1995.  The Employment Tribunal appear to have accepted that funding for the 4 or 5 temporary gardening staff, including the Appellant, then employed by the Council ran out, so that their employment was terminated on 29 October 1995.

9	There appears to have been a small difference in the evidence given by the Appellant and Mr Owen in this respect; the Appellant said that when his first period of employment ended on 29 October, he was told that further work would be available for him in November.  Mr Owen’s account was that he told the Appellant that should more work become available he would contact him (the Appellant).  He said he did not indicate to the Appellant that more work would be forth coming because he did not know when the funding would become available.

10	The Employment Tribunal found that the temporary staff were laid off on 29 October 1995 and were told there might be other temporary work later.  They went on to find that in November 1995 the Appellant telephone Mr Owen and he was told to start again on 8 December 1995.  He did so, and thereafter remained in continuous employment with the Council until his dismissal on 24 October 1997.

11	It follows, given that his first period of employment commenced in May 1995, that if he could count both periods of employment and the gap between those periods from 29 October to 8 December 1995, 40 days, he would by 24 October 1997 have completed in excess of 2 years continuous employment for the purposes of Section 108(1) Employment Rights Act.  Conversely if he was only able to count his second period of employment from 8 December 1995 to 24 October 1997 he would not have passed the 2 year threshold.
12	In determining that issue the Employment Tribunal looked at Section 212(3)(b) Employment Rights Act, absence through temporary cessation of work.

13	Their conclusion was that the Appellant was not absent from work on account of a temporary cessation of work during the break in employment for the reasons set out at paragraph 6 of their reasons, where they say this:-

“The Tribunal finds that this was not planned to be a temporary cessation of work which would qualify towards two years continuous employment by Section 213(3)(b) of the Employment Rights Act 1996.  All the people laid off were not taken back and given further temporary gardening work.”

14	It seems to us, with the assistance of Mr Glyn,  that that reasoning requires closer analysis.  We read it to mean that as at the 29 October 1995 it was not planned by Mr Owen to be a temporary cessation of work;  secondly, in fact, not all the people laid off were taken back and given further temporary work although, we would add, this Appellant was taken back.

Temporary Cessation
15	The cases show that 3 questions arise in determining whether employment is to be regarded as continuous for statutory purposes notwithstanding absence from work where that absence is due to a temporary cessation of work.
(1)	was the Appellant employee absent from work?  All that means is that the employee was not, in fact, at work.  That does not appear to have been in dispute.  The Appellant was not at work between 29 October – 8 December 1995.
(2)	Was that absence caused by a temporary cessation of work?  That breaks down into 2 questions.  First was there a causal link between the absence and the cessation of work?  A temporary cessation occurs where there is a cessation or interruption of normal working for whatever reason.  It is not necessary for the Employment Tribunal to investigate why the work was unavailable.  It may be for lack of funding.  See University of Aston –v- Malik (1984) ICR 492.
(3)	Finally, was the cessation temporary?  First, normal working must be resumed reasonably soon after initial cessation.  As to how long a period of time will or will not amount to ‘temporary’ is a question of fact and degree in the circumstances of the case.  Here, it was 40 days.  We note that in Bentley Engineering –v- Crown (1976) ICR 225, a break of 2 years was held by the Employment Appeal Tribunal to be ‘temporary.’

16	The second point to note as to whether the cessation is temporary is that the Employment Tribunal must look backwards, with hindsight, to see whether in fact the break could properly be regarded as temporary.  Specifically, it is not conclusive that the parties do, or we would add, do not intend, normal service to be resumed as soon as possible.  It is a factor to be taken into account.

17	Having set out the principles as we understand them we return to the Employment Tribunals reasoning.  They appear to have answered the statutory question
(a)	By looking at the Respondent’s intention when the employees were, in the Employment Tribunals words, ‘laid off’ and 
(b)	By finding that not all those laid off were taken back.

18	It seems to us that in so finding the Employment Tribunal may arguably have fallen into error in 1 or more of the following respects:
(1)	they do not have appear to ask themselves the relevant questions outlined above.  Particularly was the Appellant’s absence caused by a cessation or interruption of normal working; if so, was it ‘temporary.’
(2)	In answering that second question, did the Employment Tribunal elevate the intention of the Respondent to that of a conclusive factor? And if so was that impermissible.
(3)	Did they fail to look backwards to ask themselves whether the cessation was temporary, in the purely temporal sense?
(4)	Did they take into account an irrelevant factor by referring to the fact that not all the temporary gardeners resumed work:  Is it relevant only to consider the position of this Appellant?

19	We have sought to articulate the points which Mr Glyn, urges on us on behalf of Mr Fowler, but he has helpfully said that he will assist Mr Fowler in preparing a draft amended grounds of appeal..

20	Accordingly we direct that the case proceed to a full hearing.  The Appellant shall lodge draft amended grounds of appeal marked for my attention within 14 days of today and I will consider granting permission to amend.

21	The case will be listed for ½ day, category C.  There will be exchange of skeleton arguments not less than 14 days before the date fixed for the full appeal hearing.  Copies to be lodged with the Employment Appeal Tribunal timeously. There are no further directions, in particular this is not a case in which Chairman’s Notes of Evidence appear to be necessary.