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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Sears v. Hesketh With Becconsall Parish Council [2004] UKEAT 0244_04_2106 (21 June 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0244_04_2106.html Cite as: [2004] UKEAT 244_4_2106, [2004] UKEAT 0244_04_2106

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APPEARANCES

 

For the Appellant	No Appearance or Representation By or on Behalf of the Appellant
For the Respondent	No Appearance or Representation By or on Behalf of the Respondent

SUMMARY

Unfair Dismissal

Parish council clerk takes additional employment as clerk to a second parish council. Dismissed by second parish council after less than a year. Claims unfair dismissal asserting we can take his employment with first parish council into account in computing length of employment. Application and appeal dismissed.


 


HIS HONOUR JUDGE J R REID QC

1. This is an appeal against a decision of an Employment Tribunal held at Liverpool on 27 October 2003. The decision was sent to the parties on 6 January 2004. The unanimous decision of the Tribunal was that the Applicant, Mr Sears, did not have at least one year's continuous employment ending with the effective date of termination. So he "did not have the right to be unfairly dismissed" is the way it is put in the decision. His claim of unfair dismissal was dismissed.
2. The Notice of Appeal is a short document and is in these terms:

"6. The grounds upon which this appeal is brought are that the Employment Tribunal erred in law in that…

My previous service paragraph in my contract of employment was based on the provisions of the Employment Protection (Consolidation) Act 1978, section 1(2) (c), i.e. statute law, and this was not referred to at my hearing."

3. The factual background to the matter was that Mr Sears was employed by the North Meols Parish Council from January 1998 and continues to be employed by that Council. He was employed in addition by the Respondent, the Hesketh with Becconsall Parish Council, from 1 February 2003 until 4 August 2003, which was the date on which he was dismissed and was the effective date of termination.
4. The Tribunal, in an admirable decision, went through the various provisions relating to the computation of length of service and held as follows:

"15 The applicant had less than one year's with the respondent Parish Council. None of the special circumstances in which an applicant does not have to have at least one year's continuous employment to be able to claim unfair dismissal applied in this case. Therefore, unless under the statutory rules he could count his previous employment with North Meols Parish Council as continuous with his employment with the respondent Parish Council, the applicant does not have the right to claim unfair dismissal. Nothing in the statutory rules on continuous employment operated to make the applicant's employment with North Meols Parish Council continuous with his employment with the respondent for the purposes of claiming unfair dismissal. The North Meols Parish Council and the respondent Parish Council are not "associated employers" for the purposes of section 218 of the 1996 Act because they do not fall within the statutory definition in section 231 which is restricted to limited companies in certain relationships. The provision in the contract of employment on previous service, whatever its contractual effect might be, could not override the statutory rules on continuity of employment which the Tribunal was required to apply for the purposes of determining whether the Applicant had sufficient continuous employment to claim unfair dismissal."

5. The Tribunal had, in the course of its careful review of the law, referred to Secretary of State for Employment v Globe Elastic Thread Co. Ltd [1979] ICR 706 and the decision of the Employment Appeal Tribunal in Caines v Hamman-Lummus Ltd EAT/867/95. Of the latter decision they said:

"11. … The Employment Appeal Tribunal in the case of Caines v Hamman-Lummus Ltd…considered the effect of an agreement to backdate continuity of service beyond the employment with that particular employer. The EAT applied the House of Lords' decision in the Globe Elastics case to the situation holding that there was no continuity of employment prior to service with that particular employment. The Employment Appeal Tribunal held the reference in section 210 (1) to the "express provision to the contrary" referred to any contrary provision in the Employment Rights Act itself and not to any contractual agreement between the employer and employee."

The Tribunal went on and applied that decision.

6. Since the date of that decision the decision in Caines has been referred to by the Court of Appeal in Fitzgerald v University of Kent, a decision of the Court of Appeal handed down on 17 February 2004. At paragraph 20 Sedley LJ, with whose judgment the other two members of the court agreed, said:

"20. That answer in my judgment is that the effective date of termination is a statutory construct which depends on what has happened between the parties over time and not on what they may agree to treat as having happened. This was in fact the approach adopted by the EAT, again with Judge Peter Clark presiding, in Caines v Hamman-Lummus Ltd (unreported, 11 January 1996). There the EAT upheld the industrial tribunal's view that, in ascertaining the starting date of a period of continuous employment under what was then the Employment Protection (Consolidation) Act 1978, only the statutory provisions (viz those now found in s.211 of the 1996 Act) were admissible. In my judgment the same is true of the other elements of the statutory computation of time."

There is a ringing endorsement of Judge Clark's decision by the Court of Appeal within the last 4 months.

7. The grounds of appeal, which I have read, refer to the 1978 Act. The particular provision to which the Appellant referred was as follows:

"1 (1) Not later than thirteen weeks after the beginning of an employee's period of employment with an employer, the employer shall give to the employee a written statement in accordance with the following provisions of this section.

(2) An employer shall in a statement under this section:

…

(c) state whether any employment with a previous employer counts as part of the employee's continuous period of employment, and, if so, specify the date when the continuous period of employment began."

Section 1 of the Employment Protection (Consolidation) Act 1978 was repealed in 1996 and the equivalent provision is now section 1 (3) (c) of the Employment Rights Act 1996.

8. The contract of employment in this case contained this at clause 2:

"Previous Service

No employment with any other employer shall count as part of the employee's continuous period of employment with the council, save where the previous employer was a local authority."

9. It does not seem to us that that statement is of any materiality when determining the statutory test as to continuity of employment. Furthermore, it does not seem to us that clause 2, as a matter of construction, contemplated the situation where the other employment was continuing. In such circumstances the other employer cannot properly be described as a "previous employer".
10. There is nothing in this appeal. It will be dismissed.