Appeal No.	UKEATPA/1135/07/DA
UKEAT/0208/08/DA	

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 July 2008

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

UKEATPA/1135/07/DA

MR K KENNAUGH	APPELLANT

MR D LLOYD-JONES	RESPONDENT

RULE 3(10) APPLICATION – APPELLANT ONLY

UKEAT/0208/08/DA

MR K KENNAUGH	APPELLANT

MR D LLOYD-JONES t/a CHESHIRE TREE SURGEONS 	RESPONDENT

FULL HEARING

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR PETER WALLINGTON
(One of Her Majesty’s Counsel)
Bar Pro Bono	
For the Respondent	No appearance or representation by or on behalf of the Respondent	

SUMMARY
UNFAIR DISMISSAL:  Exclusions including worker/jurisdiction
Continuity of employment - correct question to be asked under s212(3)(a) Employment Rights Act.  Capability to do the job for which he was employed.  Appeal allowed and case remitted.  

Separate appeal;  application under R3(10) dismissed (PA1135/07/DA).

HIS HONOUR JUDGE PETER CLARK

1.	This hearing follows an earlier hearing before me on 14 May 2008.  For the history of this matter between Mr Kennaugh, Claimant, and Mr Lloyd-Jones trading as Cheshire Tree Surgeons, Respondent, I refer to the judgment which I delivered on that day.  Two appeals fall for consideration today. 

(1)	In PA/0710/07/DA; now UK EAT/0208/08/DA, I allowed the Claimant’s appeal against the Registrar’s order refusing an extension of time for his appeal against the corrected judgment of Employment Judge Robinson, sitting alone at a pre-hearing review held in Liverpool Employment Tribunal on 23 March 2007 (the PHR judgment), and directed that the appeal proceed to a full hearing before me.  The Respondent has decided not to attend this hearing, but has lodged (revised) written submissions which have been shown to Mr Peter Wallington QC, appearing on behalf of the Claimant today, and which I have also taken into account.  The issue in this appeal relates to continuity of service (the Continuity appeal).

(2)	In PA/1135/07/DA I adjourned the Claimant’s application under Rule 3(10), having permitted the Claimant to amend his grounds of appeal in order to obtain the Employment Judge’s comments on those amended grounds.  The appeal relates to the same Judge’s judgment following a hearing held on 26 June 2007 and promulgated on 16 July.  That restored hearing is now also before me (the Rule 3(10) application).

The Continuity Appeal
2.	The facts found by the judge in respect of the Claimant’s service with the Respondent are set out at paragraphs 10 to 11 of the PHR judgment, as follows:

“10.  It is clear from the evidence that was given by both the claimant and the respondent and perusing the documentation that the claimant initially worked on trial for a couple of weeks at the beginning of March 2004.  He then started working full-time week ending 2 April 2004 and worked through until 16 July 2004.  He had 23 days off during that time for various matters such as Bank Holiday, injury, repairing his car and doing his own garden.  Between 16 July 2004 and 5 November 2004 he did not work for the respondent.  For two months of that period he lived in Portsmouth with a friend, was unable to do physical work because of a problem with tennis elbow but he, by his own admission on 2 September 2004 claimed Jobseekers Allowance consequently offering himself for work elsewhere.  Not only did the claimant give evidence to me to that effect he also, at the time, sent an e-mail to the respondent on 3 September 2004 which reads as follows,:
‘Okay, no worries, just have to go to plan B.  We’ll tell them I’ve left and I’ll claim unemployment benefit instead.  I went to a Job Centre t’other week and they advised me wrong, so that gives justification for backdating it.  I’ll get something off them anyway.’ 
11.  For the next few weeks until he had returned to work he was consequently claiming JSA and living many miles from his place of work with the respondents.  In these circumstances he was not employed for one year but for two separate periods of less than one year and there was no continuity of service.”

3.	At paragraph 15 the Judge records that the effective date of termination of the contract was some time in February 2006, consequently the Claimant would have to be employed from the beginning of March 2004 for there to be one year’s full service for the purpose of s108(1) of the Employment Rights Act 1996 (“ERA”) and his right to bring a claim of unfair dismissal under s94 ERA.

4.	At paragraph 16 the Judge referred to the deemed continuity provisions in s212 ERA, which reads as far as is material for present purposes:

“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. 
(3)  Subject to subsection (4) [not material], any week (not within subsection (1)) during the whole or part of which an employee is— 
(a) incapable of work in consequence of sickness or injury ... 
counts in computing the employee’s period of employment.”

5.	The judge’s conclusions on the continuity issue are expressed at paragraphs 18 to 20 thus:

“18.  Applying the law to the facts of this case it is clear that the claimant worked for two periods, each less than a year and there was no continuity of service.
19.  Section 212 of the Act does not save the claimant as the reason for him being off during the summer of 2004 is not known but he was not available to work for the respondents because he was claiming JSA and much of that time he was living in Portsmouth.
20.  The nature of the work that is carried out by workers or employees of the respondent can be seasonal and can clearly be patchy but on the facts of this case there is a clear break in the employment of the claimant and on that basis his claim for unfair dismissal fails ...”

6.	Mr Wallington QC, again appearing pro bono on behalf of the Claimant, submits correctly that the real issue here is the effect of the Claimant’s absence from work with the Respondent between July and November 2004.  Mr Lloyd-Jones in his submissions lodged on 15 July 2008, focuses on the factual chronology of the Claimant’s work with him.  He does not address the application of s212(3)(a) ERA to the facts as found by the Employment Judge.

7.	Appeals to the Employment Appeal Tribunal lie on questions of law only.  The question for me is whether Mr Wallington has identified any error of law in the Judge’s approach.  I should say I think it fair to assume that the Employment Judge did not have the advantage of the rigorous analysis of the relevant statutory provisions, both parties being unrepresented below, which has been addressed to me today by leading counsel.  It seems to me that the proper approach in this case is to determine what is the proper question or are the proper questions to be asked under the statutory provision and then look at the Judge’s reasoning to see whether those questions were asked and answered.  

8.	I agree with Mr Wallington as to the first question.  It is whether between the start date of the employment and the effective date of termination, here in February 2005, was there any week within that period during the whole of which there was no contract of employment (see s212(1)) throughout.  One must bear in the mind the presumption of continuity contained in s210(5).

9.	The answer to that question on the Judge’s findings is that there was no contract between approximately 16 July and 5 November 2004 covering all weeks and part weeks in that period.

10.	The next and crucial question, it seems to me, is this: during each of those weeks was the claimant incapable of performing the work he was employed to undertake under the previous contract, that is as a tree surgeon, by reason of sickness or injury (“the causation issue”)?  That is the question posed by s212(3)(a) as was made clear by the Court of Appeal in Pearson v Kent County Council [1993] IRLR 165, and for an example of that principle in practice see Donnelly v Kelvin International Services [1992] IRLR 496.  

11.	It is at this point where I accept Mr Wallington’s submission that the Employment Judge fell into error.  It is not simply that the question was not posed in that way but it is clear from his reasoning and decision that he did not answer that question.  In particular, the fact that the claimant was living in Portsmouth and was on Jobseekers Allowance does not, it seems to me, answer the relevant question: was he incapable of work by reason of ill health?  That means the work in which he was engaged with the respondent, not just any work.

12.	In these circumstances it seems to me that this appeal must be allowed.  It is clear that there are insufficient findings of fact and indeed outstanding factual issues to be determined which preclude me from deciding the point myself in this Appeal Tribunal.  Consequently I shall direct that the continuity question be remitted to the Employment Tribunal for rehearing by a different Tribunal.

13.	In that connection Mr Wallington raises two further matters.  First, he invites me to direct that the further hearing be held in a Tribunal sitting in Manchester rather than Liverpool.  That, it seems to me, is a matter for the Regional Employment Judge to determine, having heard representations from both parties, and bearing in mind the proper distribution of business in that region.

14.	The second application made on behalf of the Claimant is that at the remitted hearing a full Tribunal should hear not only the continuity issue but also the substantive unfair dismissal case.  Again, it seems to me that it is a matter for the Employment Tribunal to give directions as to whether or not there should be the hearing of a preliminary issue on the continuity point or whether that should be dealt with at a substantive unfair dismissal hearing.

Rule 3(10) application
15.	Turning now to the outstanding Rule 3(10) application, this is an Appellant only hearing.  

16.	On the last occasion I permitted the Claimant to amend his grounds of appeal by deleting the existing grounds and adding three further grounds, each of which was the subject of a Burns/Barke reference back to Employment Judge Robinson.  Having considered the Judge’s response the Claimant abandons the first amended ground of appeal.  As to the remaining grounds, ground 2 contends that a claim by the Claimant in respect of a bonus for work done on Good Friday 2004 in Leeds was not adjudicated on by the Employment Judge.  His response is that in relation to that day’s work it was ultimately agreed between the parties that there had been a shortfall in payment of some £9.96 and accordingly that sum was ordered.

17.	Mr Wallington seeks to put in a draft witness statement from the Claimant dealing with that aspect of the claim which he says was advanced below.  I am not minded, having read it, to do so.  It seems to me that if there was confusion before the Employment Tribunal, without being unduly harsh, that was caused by the Claimant failing to put his case clearly.  I am not persuaded that there are any grounds for interfering on that second ground of appeal.

18.	The third ground of appeal, which does have some vague provenance in the particulars of claim, the original form ET1, is also considered by the Employment Judge.  He is clearly of the view that this particular claim in relation to monies said to be due to the Claimant based on an arrangement for payment in respect of work done for clients again is said not to have been raised below.

19.	I do not propose to go further into that area of dispute.  I accept what is said by the Employment Judge; and looking at this appeal overall in my judgment it would be disproportionate to permit the matter to go forward to a full hearing at which I can see no reasonable prospect of any error of law being made out.

20.	Consequently I shall dismiss this application and with it the appeal in PA/1135/07/DA.