Appeal No. EAT/588/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 27th July 1993
	Judgment delivered on 8th October 1993

	Before

	HIS HONOUR JUDGE J HULL QC

	Ms M EXLEY

	MRS P TURNER OBE

MR B CANNELL	APPELLANT

THE COUNCIL OF THE CITY OF 	RESPONDENTS
 NEWCASTLE UPON TYNE

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	Mr J Watt-Pringle
(of Counsel)
Messrs Anthony T Bryson & Co
5, 7, 9 Grey Street
Newcastle upon Tyne
NE1 6EE

For the Respondents	Mr P Cape
(of Counsel)
Newcastle upon Tyne City Council
Legal Department
Civic Centre
Barras Bridge
Newcastle upon Tyne
NE99 2BN

HIS HONOUR JUDGE HULL QC       This is an appeal by Mr Cannell against the decision of the Industrial Tribunal sitting at Newcastle upon Tyne on 27th February 1991.  Mr Cannell complained to the Industrial Tribunal that he had been unfairly dismissed, alternatively that he was entitled to receive a redundancy payment from his former employers, Newcastle upon Tyne City Council.  The Council took the preliminary point that Mr Cannell had not been continuously employed by them for the necessary period of two years ending with the effective date of termination of his employment.  Accordingly, they said, the Tribunal had no jurisdiction to entertain either complaint.

	The Tribunal found that Mr Cannell was first employed by the Council on 28th September 1987 as a Scale II section leader in the Community Programme Section.  That employment was on a temporary contract of a maximum duration of one year funded by the Manpower Services Commission.  That temporary contract ended on 23rd September 1988 and was not renewed.

	The Tribunal also found that the Applicant gave great satisfaction in the performance of his duties and he was invited to make application for the new post of instructor/supervisor Scale IV.  That position in the employment of the Council had become possible within the terms of the Employment Training Programme.  The Applicant accepted the invitation and was offered employment commencing on 4th October 1988.  Upon the expiry of his previous contract on 23rd September 1988 the Applicant was unemployed until 4th October 1988 when he entered into the new employment.  The Tribunal found that in the events that happened the second contract of employment, which was initially of temporary duration of up to one year, was extended until it was terminated by one month's notice ending on 30th April 1990, upon which date it expired.

	After considering other relevant statutory provisions, the Tribunal went to Schedule 13 of the Employment Protection (Consolidation) Act 1978.  Under paragraph 9 of that Schedule headed "Periods in which there is no contract of employment", it is provided:
	"(1)  If in any week the employee is, for the whole or part of the week -

	...

	(b)  absent from work on account of a temporary cessation of work ... that week shall, ... count as a period of employment."
The Tribunal observed:
	"...unless the applicant can show that his absence from work until 4th October 1988 was on account of a temporary cessation of work he is not able to show that he had been continuously employed for not less than 2 years before 30th April 1990 which was the effective date of termination of his employment in respect of his complaint that he had been unfairly dismissed and the relevant date in the case of his complaint that he was entitled to a redundancy payment.  The Tribunal has concluded that the applicant's absence from work was not on account of a temporary cessation ... .  The Tribunal has concluded that the respondents acted reasonably throughout and that in the case of the applicant there were 2 separate periods of employment which the respondents were able to offer to him by virtue of outside funding in respect of 2 separate schemes.  With regard to the second contention the Tribunal is satisfied that there was no temporary cessation of work.  In no sense could it said on the evidence before the Tribunal that the applicant was laid off.  Upon the expiry of his first contract of employment his appointment to the second was dependent upon interview.  Irrespective of funding as the Tribunal has found as a further fact, the nature of the 2 periods of employment differed in the sense that the second period of employment involved a greater stress upon training than did the first.  The Tribunal is conscious of the fact that so far as the applicant was concerned there was very little change in the terms and conditions of his employment throughout and that he might well have thought that the second period of employment provided him with extra duties which were taken into account by virtue of the fact that he received a substantially larger salary but that has not altered the view of the Tribunal that there were 2 separate periods of employment and that the break of one working week between them has sadly for the applicant resulted in his not having shown continuous employment for a period of not less than 2 years.  In these circumstances the Tribunal has no jurisdiction to hear his alternative complaints."

	Mr Watt-Pringle, who appeared before us for Mr Cannell, made a number of criticisms of the Tribunal's findings.  First and foremost, he said that it was obvious that the Tribunal had wrongly placed the onus of showing continuity on Mr Cannell.  He invited our attention to the provisions of paragraph 1(3) of Schedule 13, which provides:
	"A person's employment during any period shall, unless the contrary is shown, be presumed to have been continuous"
He also submitted that the Tribunal appeared to have attached importance to a factor which might well be wholly irrelevant, namely that the employment of Mr Cannell was governed by two separate contracts.  As he pointed out, paragraph 9 was invariably concerned with precisely that situation.  He also referred to Aston University v. Malik [1984] ICR 492, showing that a "cessation" of work may take place even if the work is still required, but cannot be done for the moment because there is a temporary lack of funds.  That was precisely the situation which had arisen here, he said.  Mr Watt-Pringle made what appeared to us to be an important submission that employment was to be deemed to be continuous even if the nature of the work changed from time to time: as authority for that he cited Wood v. York City Council [1978] ICR 840 where Lord Denning at p.843A observed:
	"Even though a man may change his job from, say, manual work to clerical work, even though he may change the site of his work from one place to another, even though he may change the terms of his contract of employment and enter into a new contract of employment, as long as he is with the same employer all the way through, then it is continuous employment ... .  The fact that a man changes his job and goes to a different department does not mean that he has broken the continuity of his employment so long as he stays with the same employer."

	Finally, Mr Watt-Pringle put forward a point which was not considered by the Industrial Tribunal.  He said that the evidence might well show that Mr Cannell was absent from work in circumstances such that, by arrangement, he was regarded as continuing in the employment of his employer for all or any purposes under paragraph 9(1)(c) of Schedule 13 to the Act of 1978.  Bearing in mind that the burden of proof was on the employers to negative continuity, this should, said Mr Watt-Pringle, have been carefully considered by the Industrial Tribunal.

	Mr Cape, who appeared for the Council, said that "the contrary is shown" within paragraph 1(3) of the Schedule if an employee in Mr Cannell's position shows himself that his contract of employment has come to an end.  Here, that was, said Mr Cape, precisely the effect of the evidence which Mr Cannell gave about the circumstances in which he stopped work in September 1988.

	We have come to the conclusion that this Industrial Tribunal misdirected itself in a vital respect when, on two occasions, it stated that it was for Mr Cannell to show that he had been continuously employed for not less than two years.  It appears that it must have overlooked the provisions of paragraph 1(3) of Schedule 13 to the Act.  In these circumstances, we think that the case must be remitted to another Industrial Tribunal, differently constituted, for a fresh hearing.  In those circumstances, we do not think it necessary or indeed desirable to decide the correctness of any of the very forceful points which were made by Mr Watt-Pringle on Mr Cannell's behalf.  The Tribunal which is now to hear the case will have to ask the question whether the Council can show that Mr Cannell was not "absent from work on account of a temporary cessation of work".  That will involve, no doubt, consideration first and foremost whether there was a "temporary cessation of work".  In the ordinary case, of course, where an employee is temporarily laid off, he then returns to the same work that he was doing before he was so laid off.  That was the case in many of the important authorities to which we were referred.  It is our provisional view, however, that that is not essential to a finding that paragraph 9(1)(b) applies to the absence.  If there is a cessation of work; if it is correct to describe that cessation as "temporary"; and if on a true view the absence of the Applicant from work is on a temporary cessation, then on the face of it the Applicant's employment has been continuous even if the new work is not the same as the old.  We would emphasise that this is a provisional view, and that in any particular case the conclusion must depend on the evidence, and that the Tribunal which is now to hear Mr Cannell's application must in due course decide all questions of fact and all issues of law that arise.  The Tribunal may very well decide to consider whether Mr Cannell's employment has been continuous by virtue of the provisions of paragraph 9(1)(c) of the Schedule.  That again must depend on the evidence which it hears, the submissions which it receives and its conclusions of fact.

	We therefore remit this case to an Industrial Tribunal differently composed inviting attention to the provisions of paragraph 1 and paragraph 9 of Schedule 13 to the Act of 1978.  We order taxation of Mr Cannell's costs under the legal aid scheme.