Appeal No. EAT/0017/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 May 2002

Before
HIS HONOUR JUDGE PETER CLARK
MS S R CORBY
MR B M WARMAN

MISS L BRIGHT	APPELLANT

LINCOLNSHIRE COUNTY COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR JONATHAN AUBURN
(Of Counsel)
Instructed by:
Messrs Sills & Betteridge
Solicitors
46 Silver Street
Lincoln
LN2 1ED	
For the Respondent	MS BARBARA CONNOLLY
(Of Counsel)
Lincolnshire County Council
Chief Solicitors Office
PO Box 152
County Offices
Newland
Lincoln
LN1 1YP	

JUDG`E PETER CLARK

1.	The issue in this Preliminary Hearing, which came before an Employment Tribunal sitting at Lincoln on 22 August 2000, was whether the Applicant, Miss Wright, had sufficient qualifying service, that is 1 year, to bring a complaint of unfair dismissal against the Respondent Lincolnshire County Council.  By a decision with Extended Reasons promulgated on 14 November 2000 the Employment Tribunal found that she had not.  Against that decision Miss Bright brings this appeal.

The Facts
2.	The Appellant commenced employment with the Respondent as a social worker on 18 April 1994.  On 19 January 1999 she wrote to Ms Miners, her service manager, indicating her intention to resign from that employment with effect from 25 March 1999.  She gave as her reasons for resigning what she described as a mixture of professional and personal reasons.

3.	In subsequent discussions the Appellant learned of the Respondent’s Employee Break Scheme.  A copy of the Scheme was before the Employment Tribunal.  It contained the following main features; it applied to employees with at least 2 years continuous service, there were no maximum or minimum breaks.  Those taking a break would be kept informed of what was happening in the work place; they may be invited to attend meetings.  Approval was required if the individual wished to take paid work during the break period, there was no guarantee of a job with the Respondent at the end of the break.  Applications would be made to return under the normal appointments procedure.  If the individual returned to employment previous service would be taken into account in relation to the Respondent’s sickness and maternity schemes and for calculating annual leave.

4.	The Appellant left under the Scheme, with approval in March 1999.  Nothing was then said about continuity of service during the break.  She then applied for and was taken back into employment in November 1999.  That employment came to an end on 29 February 2000.  She then complained of unfair dismissal.

5.	The critical question was whether the Appellant was able to count as continuous employment since 1994, including the break during 1999.  She relied on Section 212(3) (c) of the Employment Rights Act 1996, which permits a person to count, as part of her continuous employment, weeks during which there is no contract of employment in existence, but when she is absent from work in circumstances such that, by arrangement or custom, she is regarded as continuing in the employment of her employer for any purpose.

6.	That provision was considered by the Employment Appeal Tribunal (Morison J presiding) in Booth v USA [1999] IRLR 16, a case to which the Employment Tribunal was referred.

7.	The relevant principles are that the arrangement must be made or the custom be in place before the break begins.  An arrangement requires some discussion or agreement between the parties to the effect that they regarded the employment relationship as continuing for some purpose notwithstanding that the contract of employment itself was terminated.

8.	In approaching this question it must be borne in mind as did this Employment Tribunal (reasons paragraph 9) that there is a presumption of continuity (Section 210(5) ERA).  It is for the Respondent to rebut that presumption by showing the contrary to be  the case.

9.	At a Preliminary Hearing held in this case on 18 June 2001 the matter was permitted to proceed to this full appeal hearing with the Respondent present on the basis, first that the written Employee Break Scheme (“The Scheme”) gave rise to some, unspecified, point of law and secondly a possible estoppel point which, it now transpires, was not taken below and therefore is quite properly not pursued by Mr Auburn today.

10.	We are therefore left with the Scheme.  Mr Auburn submits that its terms are ambiguous and that it should be construed ‘contra proferentem’, that is against the maker of the document, here the Respondent.  In any event, applying the presumption stated in Section 210(5) it is for the Respondent to rebut the presumption of continuity.  In these circumstances he invites particular attention to these features of the Scheme:

(a)	that agreement of the manager is required to enter the scheme

(b)	only certain employees are eligible

(c)	the employee cannot undertake other work during the break without consent

(d)	the break would be kept under review

(e)	the employee is to receive newsletters and may attend meetings during the break break period

(f)	there is a procedure for an agreed return date

(g)	when the employee returns to work service is taken into account for the accrued benefits to which we have earlier referred.
 
11.	He submits that taken cumulatively or individually those features clearly indicate that the Appellant was regarded as an employee for some purposes during her break.  The Scheme itself amounted to an arrangement for the purposes of Section 212 (3)(c).  To find otherwise was he submits a perverse conclusion by the Employment Tribunal.  We accept that the Scheme amounted to an arrangement.  Did that arrangement extend to the Appellant being regarded as continuing in employment for any purpose during her break?

12.	In our judgment the Employment Tribunal was entitled to conclude that it did not.  Apart from keeping the former employee informed by letter and inviting her to attend meetings if she wished to do so and requiring her to seek permission before taking alternative employment during the break the provisions relied on by Mr Auburn deal with steps to be taken before and after the break.  The Employment Tribunal were entitled to regard as significant the fact that there was no guarantee of re-employment at the end of the break.  Such a guarantee might be consistent with regarding the employee as being kept “on the books”.  It was also significant that the break could be up to 8 years.  Further, the only reference to previous service was in the context of employee benefits in the event that she returned to work for the Respondent.  Again, significantly there is no reference to continuity of employment during the break.

13.	The Employment Tribunal was required to look at all the circumstances.  They did so and reached what in our judgement was a permissible conclusion, that the Respondent had rebutted the presumption of continuity.

14.	For completeness we should add that in our view there was no evidence of a custom in relation to this Scheme, which had only begun in January 1998, falling within Section 212(3)(c).  The passage at paragraph 3 of the Appellant’s witness statement on which Mr Auburn relied does not deal with the Section 212(3)(c) question.

15.	For these reasons we have concluded that no error of law is here made out.  Consequently the appeal must be dismissed.