Appeal No.	 EAT/608/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 November 1997

Before
HIS HONOUR JUDGE PETER CLARK
MISS D WHITTINGHAM
MR G H WRIGHT MBE

MR A MONTALTO	APPELLANT

WESTMINSTER CITY COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR I BROWN
(Representative)	

	JUDGE PETER CLARK:     This appeal focuses on the definition of dismissal contained in Sections 95 and 136 of the Employment Rights Act 1996 (“the Act”).  It arises in this way.

	The Appellant, Mr Montalto, was employed by the Respondent under a series of contracts to deliver lectures on a part-time basis.  By applying the provisions of Section 212 of the Act and the House of Lords decision in Ford v Warwickshire County Council [1983] IRLR 127, an Industrial Tribunal sitting at London (North) held that he had sufficient continuous service to qualify for unfair dismissal protection.

	The point on which his claim for a finding of unfair dismissal and/or a redundancy payment failed related to the question whether he had been dismissed, or was under notice of dismissal, on the date on which he presented his Originating Application, namely 14 November 1995:  see Sections 111 and 163 of the Act.

	At the material time he had agreed to deliver two weekly lectures, each for a 30 week period.  One was a session teaching Italian for two hours per week at St Marylebone School commencing on 25 September 1995 under the terms of a contract numbered 000340; the other was a session teaching Art History for two hours per week at Quinton Kynaston School for a similar period starting on 27 September 1995 under a contract No: 000674.

	We are told today that the particular point on which this application foundered was raised for the first time by the Industrial Tribunal after it had considered argument on the question of continuity.  We are also told that there was a third contract document numbered 001250, which referred to both courses of lecture and that was the contractual document before the Industrial Tribunal, as opposed to the two separate contract documents to which we have referred.

	At all events Clause 3 of the standard form of contract made between the parties provided, as the Tribunal observed in paragraph 9 of the Reasons, for termination of a course in the event that the number of students enrolled was below a certain level.  The contract provided for termination without notice during the first four weeks of a session.

	The Art History course was undersubscribed and on 16 October 1995 the Respondent wrote to the Appellant to notify him that the Art History course would be closed with immediate effect.  The Italian course continued until March 1996.  It was the Appellant’s case that the discontinuance of the Art History course amounted to a termination of his contract of employment No. 000340 and that he was accordingly dismissed by the Respondent on 18 October 1995.  Hence he was entitled to bring his complaint on 14 November 1995.

	The Tribunal in their decision with Extended Reasons promulgated on 2 April 1997 rejected that contention, finding that he had not been dismissed prior to March 1996.  Accordingly, on that ground his complaint failed.

	At this preliminary hearing Mr Brown, on behalf of the Appellant, submits that the Industrial Tribunal erred in law.  He contends that the Tribunal ought to have regarded the Art History contract as separate from the Italian contract.  The Art History contract was brought to an end by the Respondent; that was a dismissal for the purposes of Section 95(1)(a) of the Act and the equivalent provision under Section 136.  The Industrial Tribunal, he submits, ought to have gone on to determine the complaint on its merits.

	Section 95(1)(a) provides as follows:

“(1)  For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) and section 96, only if) -
(a)  the contract under which he is employed is terminated by the employer (whether with or without notice).”

	We have considered whether, on the facts of this case, the Appellant can bring himself within sub-paragraph (a) of Section 95(1).  In determining that issue we have considered the Court of Appeal decision in Land v West Yorkshire Metropolitan County Council [1981] ICR 334.  There, as Mr Brown submits, it appears that the Court of Appeal approached the case which involved Applicants who were employed by the Respondent as full-time firemen but who, in addition, agreed to carry out further duties as retained firemen during their spare time, as one of employment under a single contract which was divisible.  Accordingly when the part-time, off-duty part of the contract was terminated, there was nevertheless continuing in existence a contract of employment for the purpose of the dismissal provisions.

	In this case, submits Mr Brown, there is a distinction to be drawn in that the provision of Italian teaching and the provision of Art History teaching fell under two separate contracts.  When the Art History contract was terminated, that was a dismissal for the purpose of Section 95(1)(a).  We are persuaded by Mr Brown that it is at any rate arguable that the case of Land may be distinguished on its facts, and the question of whether this Appellant was dismissed under Section 95(1)(a) from employment under a contract to teach Art History is a point which ought to go to a full appeal hearing and we so direct.