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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Castle v D G Pink Developments Ltd [1994] UKEAT 708_93_2004 (20 April 1994) URL: http://www.bailii.org/uk/cases/UKEAT/1994/708_93_2004.html Cite as: [1994] UKEAT 708_93_2004 |
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At the Tribunal
Judgment delivered on 1st July 1994
Before
HIS HONOUR JUDGE J PEPPITT QC
MR J D DALY
MR J H GALBRAITH CB
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant MR THOMAS KIBLING
(of Counsel)
Royal College of Nursing
Legal Services
20 Cavendish Square
LONDON W1M 0AB
For the Respondents MR NICHOLAS YELL
(of Counsel)
Messrs Cripps & Shone
Solicitors
The Old House
West Street
Marlow
Bucks SL7 2LX
HIS HONOUR JUDGE PEPPITT QC This is an appeal from a decision of the Reading Industrial Tribunal sent to the parties on 22nd July 1993 dismissing the Appellant's complaint of unfair dismissal. The Tribunal decided unanimously that the Appellant did not qualify to bring such a claim as she had not been continuously employed by the Respondents for a period of not less than two years ending with the effective date of termination of her employment.
The question of jurisdiction was raised by the Chairman of the Tribunal himself. In the course of her opening the complainant's representative informed the Tribunal that in April 1992 the complainant's working hours had been reduced from 22 to 11 and had remained at that level until her dismissal on 23rd November 1992. The Chairman therefore referred the parties to S.64(1) and paragraphs 3-5 of Schedule 13 of the Employment Protection (Consolidation) Act 1978 inviting them to consider whether in the light of those provisions the Tribunal had jurisdiction to entertain the claim. The Appellant's representative was a member of the Royal College of Nursing. After a short adjournment she conceded that the Appellant "did not have the qualifying period of service" and that accordingly her claim should be dismissed. The Tribunal did so.
Before we consider the grounds upon which the Appellant invites us to overrule the Tribunal's decision we must rule upon two preliminary issues raised by the Respondents. Mr Yell on their behalf submits that for two reasons the Appellant is precluded from maintaining her appeal. Firstly, he says, the Tribunal's order was made by consent following an agreement between the parties. As such it remains binding until the agreement is set aside. Secondly, since the point now sought to be argued on appeal was not raised before the Tribunal we should exercise our discretion against the Appellant and refuse to hear it now.
We can deal with these issues quite shortly. There is no evidence before us that the order made by the Tribunal was a consent order. It was not expressed as such and the Tribunal's use of the word `unanimous' as descriptive of its decision suggests to us that it was not. The fact that the Appellant's representative made the concession referred to in the decision does not establish that she did so by agreement with the Respondents. Nor is that contention supported by the Tribunal's finding that the Respondents' solicitor also "conceded" that the (Appellant) did not have the necessary qualifying service. His agreement with the course taken by the Appellant was in no sense a concession; he was presented by the Chairman with an argument which guaranteed his clients' success and understandably (and rightly) he adopted it. In these circumstances we find that the order of the Tribunal was neither a consent order nor an order based upon an agreement made between the parties.
Mr Yell's second argument is based upon Kumchyk v. Derby City Council [1978] ICR 1116 in which Arnold J expressed the view at page 1123 that the Employment Appeal Tribunal should not entertain a point of law not taken in the Industrial Tribunal where "the omission was due to the lack of skill or experience on the part of the advocate". In House v. Emerson Electric Industrial Controls [1980] ICR 795 however, Talbot J. whilst "wholly endorsing" what Arnold J. had said expressed the view that it was open to the EAT to entertain new points of law not argued in the Industrial Tribunal where the new points raised:
"the question of jurisdiction, that is to say where the Industrial Tribunal claims jurisdiction or refuses to accept jurisdiction".
Mr Yell reminded us that even where the new point of law sought to be argued raised the question of jurisdiction the EAT has a discretion to refuse to entertain the appeal. [See, for example, Russell v. Elmdon Freight Terminal Ltd [1989] ICR at p.632, where the test to be applied in such cases was stated to be whether justice required that the new point should be allowed to be taken].
We consider that we should entertain this appeal. The new issue of law which it raises is an important one which can be determined without calling any further evidence. Some prejudice will be occasioned to the Respondents by our doing so, but in all the circumstances it is our view that justice requires that we proceed to hear the Appellant's present argument which her unqualified representative at the Industrial Tribunal could not reasonably have been expected to advance.
We turn therefore to the substance of the appeal. It is not in dispute that the Appellant was employed by the Respondents as a nurse at the White Lodge Residential Home, Bisham Road, Marlow. Her contract of employment provided that her 'basic working week would be determined and shown on the on-duty rota held in the Manager's office'. From the commencement of her employment on 22nd April 1989 until 8th April 1992 she worked a total of 22 hours each week in two shifts. On 8th April 1992 her working week was reduced to one shift of 11 hours as a result of a letter dated 13th March 1992 which she wrote to the Respondents in the following terms:
"It is with regret that I have to inform you that I can no longer work a Wednesday night duty. I therefore tender four weeks' notice to this effect.
I understand that the last Wednesday night duty that I work will be Wednesday 8th April 1992."
The reason why the Appellant sought to have her hours reduced from 22 to 11 was because she had found another job.
Mr Kibling on behalf of the Appellant accepts that in reaching its decision the Tribunal correctly construed paragraphs 3, 4 and 5 of Schedule 13 to the 1978 Act. The Appellant's qualifying service of 22 hours per week ceased on 8th April 1992. Thereafter for a period of six months until 8th October 1992 the continuity of her qualifying service was preserved by paragraph 5 notwithstanding that she worked for only 11 hours per week. But with effect from 8th October the continuity of her qualifying service was broken and accordingly the Tribunal held that for the purpose of S.64 of the Act "she had not been continuously employed for a period of not less than two years ending with the effective date of termination of her employment".
Mr Kibling does not seek to attack this line of reasoning. Instead he relies on S.140 of the 1978 Act, the relevant part of which reads as follows:
"(1) Except as provided by the following provisions of this section any provision in an agreement (whether a contract of employment or not) shall be void insofar as it purports -
(a) to exclude or limit the operation of this Act or
(b) to preclude any person from presenting a complaint to, or bringing any proceedings under this Act before, an Industrial Tribunal".
It is not suggested that any of the following provisions of S.140 apply.
Mr Kibling's submission stated shortly is that the agreement by which the Appellant's hours were reduced from 22 to 11 was rendered void by S.140 insofar as it excluded or limited the Appellant's entitlement to bring a claim for unfair dismissal. He makes this submission whilst conceding that the agreement for the reduction in the Appellant's hours of work was made at her request, to suit her convenience and to enable her to take alternative employment. None of this matters, says Mr Kibling. Insofar as the effect of the agreement precluded even temporarily the bringing of a claim for unfair dismissal, S.140 operates to invalidate it no matter what its primary purpose was. The Appellant qualified to bring a claim for unfair dismissal on 22nd April 1991 by dint of her qualifying service for two years up to that date; nothing that happened afterwards deprived her of that right.
The submission is a bold one but Mr Kibling with his customary sangfroid sought to make it good by reference to authority. He referred us firstly to Joseph v. Joseph [1967] 1 Ch. 78, a case in which for the purposes of S.38(1) of the Landlord and Tenant Act 1954 the Court of Appeal held that the word `purport' meant `had the effect of'. The relevant part of S.38(1) reads as follows:
"Any agreement relating to a tenancy to which this part of this Act applies ... shall be void in so far as it purports to preclude the tenant from making an application or request under this part of this Act".
In Igbo v. Johnson, Matthey Ltd [1986] ICR 505 the Court of Appeal by concession and without argument applied that definition to the word `purport' in S.140 of the Employment Protection (Consolidation) Act 1978. The case concerned a female employee who wished to take an extended holiday to visit her husband and children in Nigeria. Her employers agreed upon the condition that if she did not return to work on the day following her extended holiday her contract of employment would `automatically terminate on that date'. The employee was delayed on her return and the employers treated her contract as terminated in accordance with the agreement. It was held that the effect of the condition was to limit the operation of the Act and was accordingly void under S.140.
Section 140 and its predecessor S.32(1) of Schedule 1 to the Trades Union and Labour Relations Act 1974 have been applied in a number of cases where their application was more obvious. These cases include Council of Engineering Institutions v. Maddison [1977] ICR 30 EAT (an agreement not to pursue a claim for unfair dismissal in return for an ex gratia payment), Naqvi v. Stephens Jewellers Ltd [1978] ICR 631 (an agreement not to continue unfair dismissal proceedings) and Hanson v. Fashion Industries (Hartlepool) Ltd [1981] ICR 35 EAT (a re-engagement agreement after a strike which contained provisions negativing the ordinary rules as to continuity of employment). But the closest analogy to the present case is Secretary of State for Employment v. Deary [1984] ICR 413 EAT upon which Mr Kibling relied heavily. The case concerned seven school dinner ladies whose hours of work were reduced by their employers from eight hours a week to something less as a result of an alteration in the number of meals served. The effect of the reduction, though not it seems the intention, was to deprive the employees of the continuity of service required to entitle them to claim redundancy payments. The case was decided in the employees' favour on a point of construction of paragraph 4 of Schedule 13 to the Act, but the Industrial Tribunal also expressed the view that any agreement by the employees to work the reduced hours would have been invalidated by S.140 of the Act. Nolan J. giving the judgment of the Employment Appeal Tribunal on the Secretary of State's appeal approved this conclusion, obiter, and said at p.419B:
"The paragraph (in the decision) appears to us to summarise the law with admirable clarity. It has been put to us that many other examples could be given to which, if the same reasoning were applied, absurd results might be attached. That may be so. There are many statutory provisions against which an argument involving a reductio ad absurdum can be deployed. We are concerned with the facts of the present case and with the application of those facts to S.140. If the decision of the Industrial Tribunal were not justified under paragraph 4 of Schedule 13, as we think it is, we would think that this was a case that fell within the proper and intended scope of S.140. We decline to place a construction upon that section which would take a case such as the present outside its scope".
Mr Kibling draws together the threads of these authorities and submits to us that any agreement between employer and employee whatever its purpose and whatever its scope is invalidated by S.140 insofar as its effect is to exclude or limit the operation of the Act or to preclude the employee from presenting a complaint to or bringing any proceedings before an Industrial Tribunal. The agreement by which the Appellant's hours of work were reduced from 22 to 11 was such an agreement and accordingly her working week must be deemed to have remained at 22 hours thereby preserving her right to complain of unfair dismissal.
Mr Yell, on behalf of the Respondents, submitted that we should not accept for the purposes of S.140 the definition of `purport' adopted by concession in Igbo v. Johnson Matthey Chemicals Ltd (supra). The plain and ordinary meaning of `purport' involved an element of intention; the adoption of the wholly objective definition `have the effect of' would produce absurd results. He cited as an example the employee who after one week reduced his hours of working below the qualifying minimum. Even if the employee did so for his own convenience his employer's agreement to the reduction would be invalidated by S.140 and in due course he would qualify to take proceedings for unfair dismissal. This would drive a coach and horses through the qualifying provisions in Schedule 13. Section 140 was never intended to cover bona fide agreements made without reference to an employee's rights under the Act. It applied only where the Tribunal found an express intention to avoid the provisions of the Act or could infer such an intention from the surrounding circumstances.
As to the cases cited by Mr Kibling, Igbo was a case where a clear intention on the part of the employers to exclude the operation of the Act could be inferred. Hanson fell into the same category. In Navqui that intention was expressed. The dictum of Knox J. in Deary was obiter and was based on the particular facts of that case which were clearly distinguishable in that there the reduction in the employee's hours was at the behest of the employers whereas here it was at the express request of the employee. In any event we were not bound by Deary and if necessary we should not follow it.
It is perfectly true that the definition of `purport' in Igbo is not strictly binding upon us because it was adopted by the Court of Appeal without argument as a result of concession made by counsel. But even so the definition carries considerable weight taken as it was from Joseph v. Joseph (supra). Furthermore, we are struck by the similarity of purpose in S.38(1) of the Landlord and Tenant Act 1954 and S.140 of the Act both of which sections were designed to protect the weaker of two bargaining partners from oppression at the suit of the stronger. Moreover, we have in mind that Phillips J. as long ago as 1977 said of paragraph 32(1) of Schedule 1 to the 1974 Act:
"...provisions of this kind designed to protect employees from losing the benefit of the rights conferred on them by the Act ought to be applied broadly if, as we think is the case here, the language of the enactment allows". [Council of Engineering v. Madison (supra) at p.35D.
It seems to us that if intention was a necessary ingredient of the word `purport' in S.140 Tribunals would be likely to become involved in protracted disputes about the parties' motives which would unnecessarily complicate what was intended to be a straightforward investigation. We therefore feel that we should adopt the definition of `purport' in Igbo, namely `has the effect of'. On the other hand we consider that there is much force in Mr Yell's submissions. We find it difficult to see how changes in the hours of work of employees made for bona fide employment reasons - that is to suit the immediate needs of the employer or the employee - can be regarded as provisions purporting to exclude or limit the operation of the Act, particularly as variations in hours of work seem to us to fall naturally to be dealt with under the provisions of paragraphs 3-5 of Schedule 13.
We have not found this an easy case to decide. Mr Kibling accepted that if one disregards S.140 of the Act the Tribunal's decision could not be challenged. The Appellant's continuity of employment for more than 16 hours each week was preserved by paragraph 5 of Schedule 13 for 26 weeks until 8th October 1992. Thereafter the Appellant would have been obliged to re-qualify under S.64(1) of the Act by dint of her continuing employment of 11 hours per week and would not have done by the date when her employment was terminated. The validity of her complaint of unfair dismissal was thus wholly dependent upon the application of S.140 of the Act for which Mr Kibling contends.
We have come to the conclusion that in the circumstances of this case the Appellant cannot rely upon S.140 to preserve her continuity of employment. The reality of her situation was that she found herself another job and in order to take it gave notice to the Respondents reducing her weekly hours from 22 to 11. The Respondents agreed to accommodate her. But it would be wholly unrealistic to say that it was this acquiescence on the part of the Respondents which had the effect of excluding or limiting a provision in the Act or of precluding her from making a complaint of unfair dismissal. Insofar as the reduction in the Appellant's working hours may have had this result it was the Appellant's unilateral decision to seek that reduction. She effectively terminated part of her contract of employment by presenting the Respondents with a fait accompli in her letter of 8th April 1992. This was the prime cause of the reduction in her working hours and it does not seem to us that merely by accepting her terms the Respondents can be said to have been party to an agreement caught by S.140. That agreement reflected no more than a willingness on the part of the Respondents to facilitate a decision which the Appellant herself had taken to work for other employers. By that decision the Appellant in our judgment must be taken to have opted out of the protection afforded to her by S.140; the Respondents' concurrence in her decision did not re-instate that protection.
We do not consider that our decision conflicts in any way with the obiter dictum of Nolan J. in Deary (supra). In that case the reduction in hours was imposed upon the dinner ladies by their employer. They had to accept it or terminate their employments. They neither sought the reduction nor was its imposition in their interests. Nothing which they did can be said to have called into question their right to rely on S.140 of the Act. It seems to us therefore that their position cannot be equated with that of the Appellant.
This appeal must accordingly be dismissed.
