Appeal No.	 EAT/1081/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 April 1997

Before
 THE HONOURABLE MR JUSTICE LINDSAY
MR E HAMMOND OBE
MR J C SHRIGLEY

MR D WILCOCK	APPELLANT

WEST ANGLIA GREAT NORTHERN RAILWAY LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR P EPSTEIN
(of Counsel)
Lancasters
486 Chiswick High Road
London
W4 5TT	

	MR JUSTICE LINDSAY:	We have before us the appeal of Mr D. Wilcock, in a matter in which he, below, before the Industrial Tribunal, had been the Applicant, and the Respondent was West Anglia Great Northern Railway Ltd.

	The Industrial Tribunal, under the chairmanship of Mr D.R. Crome, came to a decision on 9 August 1996.  The unanimous decision of the Tribunal was that the application was dismissed on the trial of a preliminary issue of whether the unfair dismissal legislation applied to Mr Wilcock’s dismissal.  The particular reason that the matter be raised as a preliminary issue was the question of whether there was a fixed term contract here and whether, in connection with that fixed term contract, there had been an exclusion under the statute.  It was a preliminary hearing only to examine the nature of Mr Wilcock’s contract of employment in the light of section 142 of the 1978 Act, which disapplies to the unfair dismissal legislation in certain contexts.

	What the Industrial Tribunal held was that Mr Wilcock’s employment began on 25 April 1994 and that it expired by effluxion of time on 24 April 1996.  It was not renewed and it was a fixed term contract.  It is implicit in the Decision of the Industrial Tribunal that it was a fixed term contract for more than one year and in fact, was a fixed term contract for two years.

	The Industrial Tribunal held that the contract of employment had within its provisions an express term which they set out and which reads as follows:

“Upon expiry of this agreement any claim by you under sections 54 or 81 of the Employment Protection (Consolidation) Act 1978 (or any amendment or re-enactment thereafter) alleging unfair dismissal or redundancy shall be excluded.”

	On those findings and in the light of section 142 there could be no claim for unfair dismissal.  That was the view of the Industrial Tribunal.

	Mr Wilcock appeals to us and what is before us is a preliminary hearing only.  Mr Epstein, for Mr Wilcock, has put before us a skeleton argument and has addressed us on Mr Wilcock’s behalf and he urges that the contract was not a contract for a fixed term.  He relies on a number of pointers and in particular, on the terms of the contract which state:

“Your initial appointment will be on a 2-year renewable contract basis.  You will be required to take up the position at the earliest opportunity but no later than three calendar months from the date of acceptance of this offer.  Once known, your definite start date will be the effective commencement date of this contract.”

	As the Industrial Tribunal found, there were further provisions and, in particular, provisions at paragraph 14 of Mr Wilcock’s contract about notice.  Notice was said to be for three months for “less than two years” and six months for “two years or more”.  That point was before the Industrial Tribunal; it is recited in paragraph 3 of their Extended Reasons.

	We have also had drawn to our attention the pension provisions and even the long service award provisions of the Executive Handbook that were applied to Mr Wilcock’s employment.  But the fundamental point is the influence that the word “renewable” has in the crucial sentence, “Your initial appointment will be on a 2-year renewable contract basis”.  We do not see the word “renewable” as making the contract other than as a contract for a fixed term.  It means no more than it was a contract able to be renewed.  Its renewal, in other words, was not contractually excluded from the start.  But the contract was not renewed; the Industrial Tribunal expressly so found.  That term that the contract should be on a 2-year renewable contract basis, given that it was not renewed, does not, in our view, preclude it being a contract for a fixed term, even having regard to all the other provisions to which Mr Epstein has drawn our attention.

	There is a world of difference, it seems to us, between a contract for two years certain but terminable thereafter on notice and the contract which was before the Industrial Tribunal.  A contract for two years terminable thereafter on notice has a minimum term and runs on automatically if nothing is done, but where one has a contract as here, two years renewable, then unless something is done, the contract expires by effluxion of time.  Nothing was done and the Industrial Tribunal found it to have expired by effluxion of time.

	In his skeleton argument (but not, in fact, in his oral address) Mr Epstein has mentioned the case of British Broadcasting Corporation v Dixon [1979] ICR 281, but that case makes a point that there is nothing about notice and provisions for notice, which of themselves preclude a contract being for a fixed term.  One cannot say that because here there was provision for notice and the form which it took (which was divided into two, as between up to two years and after two years service) that that is an indication that the contract was not for a fixed term.  

	Doing the best we can with the various points to which our attention has been drawn, both in the contract and in the Executive Handbook, it seems to us that the appeal has no prospect of success and we do not think it right to let it go forward and we dismiss the appeal.