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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Nestle UK Ltd v. Johnson [2002] UKEAT 1327_00_1305 (13 May 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/1327_00_1305.html Cite as: [2002] UKEAT 1327__1305, [2002] UKEAT 1327_00_1305

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APPEARANCES

 

For the Appellant	MR JOHN BOWERS QC Instructed By: Messrs CMS Cameron McKenna Mitre House 160 Aldersgate Street London EC1A 4DD
For the Respondent	MR ALEX FOSTER (of Counsel) Instructed By: Messrs Morrish & Co Solicitors Oxford House Oxford Row Leeds LS1 3BE


 


JUDGE A WAKEFIELD:

1. This is an appeal by Nestle UK Limited and a cross appeal by Mrs Julie Johnson against a decision on preliminary issues of an Employment Tribunal sitting at Leeds on 25 September 2000.
2. As relevant to the appeals, the decision of the Employment Tribunal sent to the parties on 29 September 2000 was that, firstly, the Respondent's claim of unfair dismissal was dismissed as being out of time and, secondly, that the Respondent was entitled to a redundancy payment.
3. As to that second finding, the Appellant contends that the Employment Tribunal were wrong in that the Respondent did not have sufficient continuous employment to entitle her to a redundancy payment.
4. As to the first finding, the Respondent contends that the Employment Tribunal were wrong in their findings as regards the effective date of termination of the employment and that, had the date contended for been accepted as being the effective date of termination, the Originating Application would have been presented in time and the Respondent would therefore have been entitled to pursue her complaint of unfair dismissal.
5. The case concerns seasonal employment. As found by the Employment Tribunal in paragraphs 4 to 10 of the Decision and not contested in these appeals, the facts were as follows:

"4 … The applicant worked as a packer at the respondent's sweet factory in Castleford. The work there is seasonal. The season runs from April to the end of the year. The number of workers taken on in the spring depends upon the volume of sweets which the respondent intends to produce. The respondent's is a huge undertaking and there is internal competition amongst the respondent's factories which determines what volumes a particular factory will produce.

5 The respondent advertises for seasonal workers. Those it takes on have their names recorded. Unless objection is taken to their performance, the respondent contacts them, usually by telephone, the following year and re-engages them. Each time a seasonal worker is taken on, there is a letter of appointment and at the end of each season, there is a termination letter.

6 In the applicant's case, her first contract began on 30 June 1997 following a letter dated 20 June. That contract was terminated on 14 November by letter dated 6 November. Accordingly, the applicant worked for 138 days.

7 There followed a gap of 147 days until 11 May 1998, when the applicant began her second contract pursuant to an offer letter dated 7 May. She then worked for 223 days until 18 December 1998, when her contract was terminated pursuant to a letter dated 10 December.

8 The applicant was absent from work for 119 days until 19 April 1999, when she began to work pursuant to an offer letter dated 8 April. She worked 235 days until 10 December 1999, when her contract was terminated pursuant to a letter dated 1 December 1999.

9 Thereafter, the applicant expected to be re-engaged for the season 2000. By mid May, she was aware that the respondent had taken on seasonal workers but that, in this year, she had been excluded from the draft. She concluded that she was not likely to be invited to work this year. Accordingly, she approached her union convenor. Thereby, she was put in touch with her union, the T & GWU.

10 Her application was presented by fax on 23 June 2000. It was presented by the applicant's union. In the form IT1, her union identified as representing the applicant a solicitor employed by a Leeds firm."

6. The Employment Tribunal then referred to the provisions of sections 97, 111(2) and section 212 of the Employment Rights Act 1996 respectively on the questions of the effective date of termination, the time within which a complaint of unfair dismissal must be presented and continuity of employment. As relevant, those provisions, together with section 211(1), are as follows:

"Section 97:

(1) Subject to the following provisions of this section, in this Part 'the effective date of termination' -

(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires.

Section 111:

(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.

(2) Subject to subsection (3), an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal -

(a) before the end of the period of three months beginning with the effective date of termination, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."

Section 211:

(1) An employee's period of continuous employment for the purposes of any provision of this Act -

(a) begins with the day on which the employee starts work, and

(b) ends with the day by reference to which the length of the employee's period of continuous employment is to be ascertained for the purposes of the provision.

Section 212 Weeks counting in computing period

(1) Any week during the whole or part of which an employee's relations with his employer are governed by a contract of employment counts in computing the employee's period of employment

(2) …

(3) Subject to subsection (4), any week (not within subsection (1)) during the whole or part of which an employee is –

(b) absent from work on account of a temporary cessation of work."

It is agreed that section 212 (3) (c) does not apply here.

7. The Employment Tribunal concluded, as regards the effective date of termination, as follows:

"15 …We are satisfied that the effective date of termination was 10 December 1999 because that was the last date upon which the respondent gave notice of termination to the applicant. We reject the argument that by failing to re-engage her in the spring of 2000, the respondent was, in effect, terminating her contract of employment without notice. To hold otherwise would be to produce an artificial result."

8. As to whether there was jurisdiction to consider the complaint of unfair dismissal, the Employment Tribunal concluded in their paragraphs 16 to 18 as follows:

"16 Consequently, the limitation period expired on 9 March 2000. Plainly, the application was presented out of time. We find, however, that it was not reasonably practicable for the application to have been presented within the primary limitation period because, until the applicant knew that she was not to be re-engaged, she did not know that she had a claim.

17 The applicant learned that she had a claim in mid May. Her originating application was presented about five weeks later. She promptly put her case in the hands of her union. Unfortunately, she is bound by her union's activities. Her union had an erroneous belief that the limitation period ran from about 31 March because that was the time at which the respondent first started to notify seasonal workers that their services would be required in the year. Thereafter, the respondent engaged seasonal workers in phases finishing at the end of May.

18 The applicant's union had access to legal advice. We think that it was unreasonable of the applicant's union to assume that the effective date of termination was about 31 March 2000. The applicant had plainly been dismissed in December 1999. That fact alone should have suggested to the union's officers that the effective date of termination was in mid March. If they were not sure because of the unusual nature of the work in this case, they had access to legal advice and, in our judgment, in order to have acted reasonably, they should have taken it. Their failure to do so means that the delay of four or five weeks was unreasonable. It is axiomatic that, once the primary limitation period has expired, as soon as it becomes reasonably practicable for an application to be presented, it should be presented quickly."

9. Turning then finally to the findings of the Tribunal in relation to continuity of employment, they said this:

"19 … we have concluded that this is a typical case where the absence from work was on account of a temporary cessation of work. The work was admittedly seasonal. The periods in which the applicant worked were not dissimilar. They were substantial. The gaps between them, although substantial in time, fitted the seasonal pattern of work. The applicant was taken on as a new employee in 1997. She was invited to return to work in 1998 and 1999. We think that that was sufficient to establish the pattern so as to bring her case within section 212(3)(b) of the 1996 Act. That sub-section contemplates by the words '(not within sub-section (1))' that in the period of absence, there will not be in place a contract of employment. Indeed in the schedule to the 1978 Act, there is express reference to the absence of a contract. Thus, we do not think that it helps the respondent that they sent letters of dismissal at the end of each contract period.

20 Accordingly, the applicant does have sufficient continuity so as to entitle her to a redundancy payment."

10. It is argued on behalf of the Appellant that the Employment Tribunal thereby misconstrued section 212(3)(b). It is said to be an error of law to find that the gaps of 147 and 119 days between the respective periods of employment of 138, 223 and 235 days were temporary cessations, on a proper construction of that subsection.
11. The Employment Tribunal is said to have misdirected itself in asking the question "whether the work was seasonal" rather than "whether the cessations of work were temporary". It is also said to be a misdirection to discount evidence which was before the Tribunal on certain matters and these are set out in the Appellant's skeleton argument, those matters being the following:

"(a) the Appellant sent to the Respondent at the end of each period of work a letter of dismissal;

(b) the Respondent was asked to hand in her clock card and locker keys on termination of the employment;

(c) there was no certainty at the time of the sending of such a letter of dismissal that the employee would be re-engaged;

(d) when taken on again, the employee was treated as a new starter so that she was for example asked for her bank details, P45 and to undergo a medical check;

(e) pay in lieu of accrued holiday entitlement was paid to the Respondent at the end of each contract;

(f) at the time of termination the Appellant was unaware of future production requirements and no guarantee is made of further work;

(g) the letters of appointment stress that the work is temporary but do not mention that it is seasonal or that there is any further employment after the temporary engagement offered;

(h) there is no restriction on the employee gaining other work between periods of employment with the Appellant."

12. On the cross appeal it is argued for the Respondent that the Employment Tribunal were wrong to find that the effective date of termination was 10 December 1999 and that they should have found that date to have been in the spring of 2000, when the Respondent would first have known of the termination of the employment. The date of 31 March 2000 is suggested as being the date which the Employment Tribunal should have concluded was the effective date of termination. It is argued that the Employment Tribunal should have found that the complaint of unfair dismissal was therefore presented in time.
13. On the question of the proper construction of section 212 we were referred to four cases chronologically reported as follows:

Ford v Warwickshire County Council [1983] IRLR 126

Flack v Kodak Ltd [1986] IRLR 255

Sillars v Charrington Fuels Ltd [1989] IRLR 152

Berwick Salmon Fisheries Co Ltd v Rutherford [19991] IRLR 203.

14. In the Ford case the Court was concerned with successive contracts of employment of a teacher. Between September 1971 and July 1979 she had been contracted each September at the beginning of the academic year, under a contract ending the following July. The House of Lords held that there was continuous employment, the summer vacations being within the meaning of "absent from work on account of a temporary cession of work". Lord Diplock in passages accepted, for the purposes of this appeal as being obiter as follows:

"16 From the fact that there is no work available for the employee to do for the employer during the whole of the interval between the end of one fixed-term contract of employment and the beginning of the next, and that this was the reason for his non-employment during that interval, it does not necessarily follow that the interval constitutes a 'temporary cession of work'. In harmony with what this House held in Fitzgerald, para 9(1)(b), in cases of employment under a succession of fixed-term contracts of employment with intervals in between, requires one to look back from the date of the expiry of the fixed-term contract in respect of the non-renewal of which the employee's claim is made over the whole period during which the employee has been intermittently employed by the same employer, in order to see whether the interval between one fixed-term contract and the fixed-term contract that next preceded it was short in duration relative to the combined duration of those two fixed-term contracts during which work had continued; for the whole scheme of the Act appears to me to show that it is in the sense of 'transient', ie lasting only for a relatively short time, that the word 'temporary' is used in para 9(1)(b). So, the continuity of employment for the purposes of the Act in relation to unfair dismissal and redundancy payments is not broken unless and until, looking backwards from the date of the expiry of the fixed term contract on which the employee's claim is based, there is be found between one fixed-term contract and its immediate predecessor an interval that cannot be characterised as short relatively to the combined duration of the two fixed-term contracts. Whether it can be so characterised is a question of fact and degree and so is for decision by an Industrial Tribunal rather than by the Employment Appeal Tribunal or an appellate court of law.

17 In the instant case this was not a question to which the Industrial Tribunal ever addressed their minds. …"

Then, continuing in paragraph 19:

"19 My Lords, as I indicated at the outset, the length of successive fixed-term contracts on which part-time lecturers are employed and the intervals between them vary considerably with the particular course that the part-time lecturer is engaged to teach: so it by no means follows that a similar concession would be made or would be appropriate in each of their cases. It also follows from what I have said that successive periods of seasonal employment of other kinds under fixed-term contracts, such as employment in agriculture during harvest-time or in hotel work during the summer season will only qualify as continuous employment if the length of the period between two successive seasonal contracts is so short in comparison with the length of the season during which the employee is employed as properly to be regarded by the Industrial Tribunal as no more than a temporary cession of work in the sense that I have indicated."

15. In the Flack case, where the employee had a succession of uneven periods of work and unemployment, Lord Justice Woolf, having referred to the speech of Lord Devlin in Ford, said this, at paragraphs 19 to 21. I am going to read only part of those paragraphs:

"19 The word 'temporary' in para.9(1)(b) is not being used in the sense of something which is not permanent, since otherwise in every case where employment is resumed where there has been a dismissal on account of cessation of work, para.9(1)(b) would apply. It is, as stated by Lord Diplock, being used in the sense of 'lasting only for a relatively short time'. (I myself would not use the word 'transient'; however, I would stress the word relatively.)

20 What is a short time in one employment is not necessarily a short time in another employment. In deciding what is relatively a short time in a particular employment, it is now clearly established that it is necessary to look at the period of dismissal with hindsight – looking backwards as to the circumstances from the date of the final dismissal. In doing this, the period of dismissal relative to the period of employment is of the greatest importance. However, it is the whole period of employment which is relevant. In the case of irregular employment, if the periods of employment either side of the dismissal are only looked at, a most misleading comparison would be drawn. …

21 I do not regard Lord Diplock as laying down a test which has to be applied in all cases. I consider that he should be regarded as doing no more than giving guidance which is applicable to the type of case which was then before the House. Like any other guidance, the passage in Lord Diplock's speech should only be applied where it is appropriate. The only test is that which is laid down by the Act itself."

16. The Sillars case concerned a fuel delivery driver employed between November 1971 and May 1986 for annual periods varying between 21½ and 32 weeks a year. The Court of Appeal upheld the findings of the Employment Tribunal and of the Employment Appeal Tribunal that employment had not been continuous. In discussing the meaning of the use by Lord Diplock in the Ford case of the phrase "relatively short time" when considering "temporary" in the then equivalent section to 212(3)(b), Balcombe LJ said at paragraph 18 of the judgment:

"Relative to what? The answer must be relative to the period in work."

17. And, finally, in the Berwick case, Ian Kennedy J said at paragraph 7 of the judgment in the Court of Appeal:

"It is now well settled that temporary connotes a period which is of relatively short duration when contrasted with the periods of work. This contrast involves a question of fact and degree to be answered according to the circumstances of the individual case. The decision of the Court of Appeal in Sillars … was that in seasonable engagements where in the one year an employee worked for 30 weeks and had 21½ weeks off and in another year worked for 27½ weeks and had 27 weeks off, those periods of cessation could not admit of the description 'relatively short'."

18. Clearly, therefore, the question "what is temporary"and of therefore relatively short duration is not just a question of mathematical calculation. The time worked must be contrasted with the periods of unemployment and all other relevant factors must be taken into account.
19. Whether work is to be described as "seasonal" or whether a pattern is established over a period is not the test. For that reason we find that the Employment Tribunal in this case did not properly direct themselves in determining whether the periods of non-employment fell within the meaning of temporary cessation in section 212(3)(b) of the 1996 Act. We are unable to say whether, had they correctly directed themselves, they would have reached the same or another conclusion. For that reason that limited issue must be remitted to a fresh Tribunal to be re-heard.
20. As to the cross appeal, we are satisfied that the Tribunal correctly approached the question of the effective date of termination and reached the only conclusion possible on the undisputed facts. The letter of dismissal sent to the Respondent on 1 December 1999 quite clearly terminated the employment on 10 December.
21. The separate question raised on the cross appeal is whether the Employment Tribunal were wrong in law or were perverse to hold that the Originating Application, not having been presented to the Employment Tribunal within the period of three months from 10 December and it not having been practicable so to do, was presented within such further period as they considered reasonable within the meaning of section 111. This was a matter of fact for and the exercise of discretion by the Employment Tribunal. We can find no flaw in their approach on these questions and therefore cannot interfere with that finding.
22. The appeal is therefore allowed to the limited extent already set out.
23. The cross appeal is dismissed.