Appeal No UKEAT/0611/04/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 February 2005 

Before
HIS HONOUR JUDGE J R REID QC
MRS A GALLICO
MR D NORMAN

PRIMARY FLUID POWER LTD	APPELLANT

MR I BRISLEN	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR K HORNE
(Of  Counsel)
Instructed by:
Messrs JST Mackintosh Solicitors
Colonial Chambers
Temple Street
Liverpool L2 5RH	
For the Respondent	No Appearance or Representation By or on Behalf of the Appellant.  	

SUMMARY

Unfair Dismissal
Was Employment Tribunal justified in holding Respondent was not dismissed ‘for some other substantial reason’ and that his dismissal was not at the conclusion of a fixed term apprenticeship? It was justified.

HIS HONOUR JUDGE REID QC

1.	This is an appeal from a decision of an Employment Tribunal held at Liverpool on 18 June 2004. The decision was sent to the parties and entered in the register on 22 June. By the decision the Tribunal held that the Claimant, Mr Brislen, was unfairly dismissed, his contract of apprenticeship having ended before his dismissal, and that he did not contribute to his dismissal. The Tribunal further held that the employer, the Appellant here Primary Fluid Power Ltd, was in breach of the Applicant’s contract of employment, by failing to give him the correct amount of notice. The question of remedies was adjourned and we understand subject to the outcome of this appeal, the amount to which Mr Brislen was entitled has been agreed. 

2.	The background facts to the case are that on 9 May 2000 Mr Brislen was offered an apprenticeship with the Appellant, a company with which his father was still at that stage working. On 13 May Mr Brislen signed an acceptance. The apprenticeship commenced on 3 July 2000 and was for a period of three years. The apprenticeship comprised both work at the company’s premises and educational work off site at Mosely College. In April 2003, Mr Brislen completed NVQ level 2, and in July 2003 the term date of his apprenticeship was reached. At this time Mr Brislen was still engaged on a City and Guilds 228 course, and he had also commenced an NVQ level 3 course. There was no agreement, or indeed any attempt to agree, any extension of the term of his apprenticeship. The statement of terms and conditions of his employment was varied on the 21 July 2003. By terms and conditions (which we find at pages 36-40 of the bundle before us) provided “this section is to be signed by a senior manager after successful induction/probation has been served”.  It was countersigned by a senior manager, the engineering manager, on the 25 July. 

3.	Mr Brislen chased the employer to find out whether he was going to get a permanent position. Eventually in November 2003, the employer determined that it would not offer him any permanent position, and he was dismissed on 25 November. No reason for that was given beyond inability to present him with a permanent position somewhere in the business. When Mr Brislen began proceedings for unfair dismissal, the response of the employer was to the effect that his employment had come to an end at the end of his fixed-term apprenticeship. It was suggested that somehow the apprenticeship was prolonged, not only until the end of his course which had finished in July or possibly September, but until the end of November, when the employer discovered that his 228 course had finished and indeed that he had embarked on the NVQ level 3. On that basis, it was submitted that the dismissal was a dismissal for some other substantial reason. The Employment Tribunal held that the apprenticeship came to an end in July, and in our judgment that was a finding of fact which was open to the Tribunal.

4.	It is to be noted that at one point in the submissions of the employer to the Employment Tribunal, that the employer relied on the fact Mr Brislen remained eligible to remain on the NVQ3 programme until 23 November 2005.The college (to whom the NVQs 2 and 3, together comprised what was known as a ‘modern apprenticeship scheme’) took the view that this apprenticeship had started on 24 November 2000. From this it was deduced that the apprenticeship had ended on 23 November 2003. The Tribunal was having no truck with this. The clear terms of the contractual apprenticeship made it terminate in July. It was not suggested to us that there was evidence on which it could be argued that there was a consensual extension of the apprenticeship to the date in November, or to some earlier date before November but after July, at the end of some stage in the educational courses being taken by Mr Brislen.

5.	In our view, the Tribunal were entirely entitled to take the view that the apprenticeship ended in July, but it was then argued that in any event even if he was not dismissed on the actual end of the apprenticeship, the belief of the employer was that the apprenticeship ended in November, and it was submitted in reliance on such cases as Bouchaala v Trust House Forte Hotels Limited [1980] IRLR 382, Leyland Vehicles Limited v Jones [1981] IRLR 269, Taylor v Co-operative Retail Services Limited [1981] IRLR 1 and most recently Farrant  v The Woodroffe School [1998] IRLR 176 that all was needed was a genuine and reasonable belief, and that so long as the employer had a genuine and reasonable belief then the dismissal on the mistaken basis that a fixed-term apprenticeship had come to an end, was a dismissal which would be held as being fair under Section 98 of the Employment Rights Act 1996. 

6.	In our judgment, that was a claim which the Tribunal were entitled to disregard and reject. Indeed it is difficult to see whether the point was in fact raised in its present form before them, but assuming it was, they clearly thought nothing of it. It was up to the employer to show that there was a substantial reason and that in all the circumstances it had acted reasonably in treating that substantial reason as sufficient reason for dismissing the employee. The substantial reason was said to be the belief and it was asserted that the belief was reasonable. We cannot see how the Tribunal, had this argument been advanced, could have come to a conclusion that the employer’s actions were reasonable. This was not the way in which the case was put. It was put on a firm basis, entirely mistaken, that the apprenticeship ended in November 2003 by reason of the start date, and proposed finish date of the NVQ 3.The employer had in its possession and power all the relevant contractual documents. The employer was in a position where it could have discussed the matter with Mr Brislen in July, and made matters plain. It did no such thing. 

7.	Although the hearing before the Tribunal was clearly a somewhat messy and disjointed affair, the Tribunal had the advantage of seeing the witnesses. It had the disadvantage that the employer had made a total mess of its documentation, and clearly the manner in which it managed its apprenticeships left a very considerable amount to be desired. The onus of showing that the dismissal was fair, rested upon the employer. It cannot be said that the Tribunal was wrong in law in making the findings of fact which it did. It cannot be said that the Tribunal was perverse in making those findings. On the findings which it made, it was perfectly entitled to come to the conclusion that the fixed-term apprenticeship had ended in July. It was perfectly entitled to reject any suggestion that the employer had acted reasonably on the basis that in some mysterious way it had either genuinely and reasonably believed, that the apprenticeship was extended until November, or that the apprenticeship was in fact so extended.  

8.	In our judgment, valiantly though Mr Horne has striven to put some bones on an appeal lacking in substance, there is nothing that can really be added to what Mr Justice Mitting said when he originally saw this case on sift level, that this was “probably an unarguable appeal”. 
We have now had the benefit of full argument and he was absolutely right in thinking that it was unarguable. The appeal will be dismissed.