Appeal No.   EAT/1069/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 February 1998

Before
HIS HONOUR JUDGE C SMITH QC
SIR GAVIN LAIRD CBE
MRS D M PALMER

MRS K PATEL	APPELLANT

LONDON BOROUGH OF BRENT	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR AKHLAQ CHOUDHURY
(of Counsel)
Messrs Lock Marlborough
Solicitors
3 The Broadway
Gunnersbury Lane
London W3 8HR	
For the Respondent	MR PAUL BROWN
(of Counsel)
The Solicitor
London Borough of Brent
Chesterfield House
9 Park Lane
Wembley
Middx HA9 7RW	

	JUDGE C SMITH QC:  This is an appeal by the Applicant before the Industrial Tribunal, Mrs Kumud Patel, against a decision of an Industrial Tribunal sitting at London (North) on 21 July 1997 of which extended reasons were sent to the parties on 11 August 1997, when the Industrial Tribunal held that the Appellant had not been continuously employed by the London Borough of Brent, the Respondents, for a period of two years or more at the time of her dismissal in May 1996, so that they could not hear her complaint of unfair dismissal.

	The arguments before the Industrial Tribunal turned entirely on whether the Appellant’s absence from employment with the Respondent Council between 25 August 1995 and 16 October 1995 fell within s.212(3)(b) of the Employment Rights Act 1996, i.e., was the Appellant absent from work on account of a temporary cessation of work.  The Industrial Tribunal held that she was not and so dismissed her claim.  

	We have had the benefit of very skilled and concise arguments from Counsel on each side.  Mr Choudhury’s essential submission on behalf of the Appellant was that the Industrial Tribunal erred in law in failing to take into account the most important factor in deciding whether the absence of the Appellant was on account of a temporary cessation of work in that it failed to look backwards over the whole history of employment, as it is clear, he submits, on high authority, an industrial tribunal is enjoined to do.  He submits further that the factors that the industrial tribunal did take into account in reaching their conclusion, although of some limited relevance, were given disproportionate and undue weight in consequence of this basic omission on the part of the Industrial Tribunal.  Thus, the factors that (a) the Respondent intended on 29 August 1995 that the cessation should be permanent at the time of the first dismissal and (b) that the position to which the Appellant returned in October 1995 was different from the position she previously held and was of a temporary nature, although of a some limited relevance in deciding whether the cessation was temporary, were, he submitted, given undue and erroneous weight by the Industrial Tribunal.

	Mr Brown, Counsel for the Respondents, submitted that while there is no express reference to the “hindsight” test, it is implicit in the Industrial Tribunal’s decision that they must have looked at the whole history of the Appellant’s employment.  An Industrial Tribunal does not have to state expressly that they have taken factors into account if it is obvious that they must have done so and he submits the factors which they did take into account were legitimate and relevant considerations.  At the end of the day, he submitted, provided the Industrial Tribunal take the correct legal approach, the question which the Industrial Tribunal had to decide was a matter of common sense for the Tribunal of fact to determine.

	Those are the principal submissions made by Counsel on each side and we were helpfully referred to the relevant cases, particularly Fitzgerald v Hall, Russell & Company [1970] AC 984, Bentley Engineering Company v Crown & Muller [1976] ICR 225, Woods v York City Council [1978] ICR 840 and Ford v Warwickshire County Council [1983] ICR 273.

	It was further or alternatively submitted to us by Counsel for the Appellants that we should conclude that the decision of the Industrial Tribunal was perverse and that we should substitute a finding that the Appellant was absent on account of a temporary cessation of work on the facts found by the Industrial Tribunal.

	Mr Brown submitted in response that even if we were to find that the Industrial Tribunal’s decision on the facts found by them and for the reasons given by them was perverse, the matter should, in any event, be remitted to allow the Respondent to argue, if necessary after introducing additional evidence, that the Appellant was, in fact, absent because she chose not to accept what was suitable alternative employment and not on account of a temporary cessation of work at all.

	It is against that background and those submissions that we consider the decision of the Industrial Tribunal.  The Industrial Tribunal found as a fact that the Appellant had been employed from 26 May 1992 as a word processor originally in the Ad Shop of the Council of the London Borough of Brent.  A redundancy situation developed and occurred in the Ad Shop and as a result the Appellant accepted alternative employment with One Stop Shop as an information officer on 17 July 1995 but then requested she should be made redundant in the circumstances set out in the Respondent’s letter of 29 August 1995, from which the Industrial Tribunal cite in paragraph 3 of their decision, so she left the Respondent’s employment on 25 August 1995 with an enhanced redundancy payment.  As a result of an offer in September 1995, the Appellant took up employment as a temporary administrative officer in the Language Shop of the Respondent on 16 October 1995, where she remained until her dismissal in May 1996.

	The Industrial Tribunal correctly referred to case law in paragraph 9 of their decision and held that there had been a cessation of the Appellant’s work, having noted that the effect of s.214 of the Employment Rights Act 1996 to break continuity where a redundancy payment has been made does not operate to break continuity for the purposes of eligibility, under s.108, to bring a claim for unfair dismissal.  The Industrial Tribunal noted particularly the last sentence of the letter of 25 August 1995 viz:

“Your last day of service with us for all other purposes was 25 August”

	The key paragraph of the Industrial Tribunal’s decision is, of course, paragraph 10:

“We considered whether the cessation of work was a temporary cessation.  Clearly, at the conclusion of the employment on 25 August 1995 the Respondent did not envisage that this was a temporary cessation of work.  Mrs Patel may have so envisaged this, but she had no solid basis upon which to base this conclusion.  We considered Fitzgerald and note that in this case the dates of employment referred to of Mr Fitzgerald preceded the date when the redundancy provisions came into effect.  We are not persuaded by Fitzgerald.  We note that Mrs Patel was employed working in different functions for the Respondent and in different sections of the Respondent’s organisation.  She was not continuously employed working in the same situation, although we note that employees can be promoted.  This does not appear to have happened in Mrs Patel’s case and we note that her employment in the Language Shop was different employment from that which she had been doing in the Ad Shop and the One Stop Shop.”

	The Industrial Tribunal then expressed their conclusion in paragraph 11 of their decision and they added in paragraph 12 of their decision words to the effect that, in coming to their decision, they considered the nature and terms of the post that was offered in the Language Shop and concluded in this way:

“we note that she was only taken on in a temporary position, it was not a permanent position.”

That is a summary of the Industrial Tribunal’s decision.

	Making all due allowance for the important submissions made by Mr Brown about not requiring the Industrial Tribunal to go through every relevant matter which it has in mind provided it expresses clear and coherent reasons for a decision, nevertheless, in our judgment, it is apparent here that the Industrial Tribunal did not, with respect to them, approach the vital issue as to whether the cessation was temporary in the legally correct way.  In our judgment, it is clearly established by Fitzgerald, as applied in Bentley, that an Industrial Tribunal must engage in a “looking-back” process, over the whole period of employment, as their necessary starting point in order to determine whether a given absence is or is not temporary.  There is, of course, no requirement of a strict mathematical approach.  However, there must be a looking-back over the whole history.  This appears from Lord Morris in Fitzgerald at page 996 E-G:

“In determining whether a cessation of work has been temporary the guidance given by Lord Parker CJ in Hunter v Smith’s Dock Co Ltd should, in my view, be followed.  If in reference to the time when a cessation of work begins there is evidence showing that both the employer and the employee expected and anticipated that the cessation would only be for a relatively short time, that would be very relevant evidence in considering at a later time whether there had been a temporary cessation of work.  But the absence of any such evidence would certainly not be decisive.  It is to be remembered that there must be a looking back process and that it is at some time subsequent to re-engagement and in reference to a past period of absence from work that the question is raised whether the employee was absent from work on account of a temporary cessation of work.  All relevant evidence and all relevant factors will have to be taken into account.  Questions of fact will arise.  The duration of one period relative to or in relation to the antecedent and subsequent periods will be one relevant factor.”
	
	That important guidance and statement of principle was further explained and followed by Mr Justice Phillips in Bentley Engineering Company v Crown, particularly at page 228 at F:

“But it needs to be borne in mind at the outset that the law, now, after a judicial conflict which has been resolved in the House of Lords, is as laid down in Fitzgerald v Hall, Russel & Co Ltd [1970] AC 984.  The effect of that case is that the tribunal is enjoined to look at the matter as the historian of a completed chapter of events, and not as a journalist describing events as they occur from day to day.  The importance of that is this, that things are seen, as they unfold, quite differently from the way in which they are seen when one looks back and considers the whole of the chapter in its context.  What at the time seems to be permanent may turn out to be temporary, and what at the time seems to be temporary may turn out to be permanent.”

	In our judgment the practical importance of this approach being applied is that its application puts into the proper perspective what weight should be given to such particular matters as the intention of the parties at the time of the first dismissal.  Indeed, the importance of this can be seen from the dictum of Lord Parker in Hunter v Smiths Dock Co Ltd [1968] 1 WLR 1865 at pages 1869 at H and 1870 at A:

“For my part I see very great difficulties in construing the word ‘temporary’ in that way.  One observes in the first instance that no such words in regard to intention appear in the statute at all.  To give it that interpretation is, I think, to add something which is not there.  It seems to me that the proper approach is to look at the matter after the event, looking backwards, and say to oneself:  when this man is re-engaged, if he is, has the cessation been a temporary cessation?  Of course, if there is evidence of an intention when it began that it should be temporary that will be very relevant but the absence of such an intention does not conclude the matter.”

	It is clear, in our judgment, from those citations, that intention, particularly unilateral intention on the part of the employer, is not to be regarded in any way as conclusive.  Similarly, in our judgment, whilst we accept Mr Brown’s argument that the fact that the Appellant’s original work in the Ad Shop had come to a full stop and the work in the Language Shop, after the absence, was different in kind, is of some relevance to the consideration of s.212(3)(b), here again, in our judgment, without a clear application of the basic test of looking back and considering the whole history of employment, the danger is that disproportionate weight will be given to factors such as intention and change of job, which are of only limited significance in the overall picture.  We are forced to conclude that for whatever reason the Industrial Tribunal did not here apply the test which they are enjoined to apply and, for this reason, we unanimously are of the view that their approach was erroneous and led them to give disproportionate weight to the factors which led them to their conclusion.

	We have, of course, taken into account that the Industrial Tribunal referred to Fitzgerald but in our judgment their statement that they were not persuaded by it, seems to us to indicate that they failed to follow the proper approach as laid down by that case.

	Having considered the submissions that have been made to us overall, we have unanimously concluded that the right course here is for the appeal to be allowed and for the case to be remitted to the Industrial Tribunal so that the issue under s.212(3)(b) can be considered afresh by a differently constituted Tribunal.  In this way all arguments available to both sides can be deployed at that hearing.