Appeal No. UKEAT/0534/11/SM

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 26 June 2012

Before
HIS HONOUR JUDGE SEROTA QC
(SITTING ALONE)

ACORN PACKAGING	APPELLANT

MR M CARROLL	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Written Submissions	
For the Respondents

	Written Submissions	

SUMMARY
JURISDICTIONAL POINTS – Continuity of employment

Respondent failed to attend hearing of appeal and skeleton argument disclosed no grounds for a successful appeal.  Although there may well have been good grounds, it was not for the EAT to carry out research and advance arguments the parties have not made, especially as neither party was present.

HIS HONOUR JUDGE SEROTA QC
Introduction
1.	This is a most unsatisfactory case; I shall explain why shortly.  The case originates as an appeal from a decision of Employment Judge Ashton at the Employment Tribunal in Birmingham on 13 June 2011 to the effect that the Claimant was entitled to a redundancy payment in the sum of £1,190.28.  This had been disputed by the Respondent because the Respondent maintained, as appears to be the case, that the Claimant’s employment was due to cease on his 65th birthday on 16 October 2010.  He sought continuation of that employment but was told by the Respondent he could not be offered employment that was continuous with his employment after 16 October, and he was sent his P45.

The facts
2.	The site where he was working closed down at the end of December 2010.  He took a short-term contract, which I have not seen, that commenced on 26 June 2010 and expired on 31 December 2010.  The contract explicitly stated that the employment would not amount to continuous employment.  This is said to have been signed by the Claimant, but I have not seen this. 

3.	At some point in time a disgruntled former employee of the Respondent forged a letter to the Claimant to the effect that he was to have continuous employment.  The proceedings have been completely unsatisfactory.

The appeal
4.	Before the Employment Tribunal, the Claimant appeared in person, and there was no attendance for the Respondent.  Nonetheless, a Notice of Appeal was lodged together with a skeleton argument.  The skeleton argument I shall come to in a few moments, but there has been a problem in relation to bundles, and the bundle had to be prepared by the Employment Appeal Tribunal.  There is no proper submission from the Claimant despite requests from the Employment Tribunal; and, so far as the Respondent is concerned, the skeleton argument is in these terms:

“1.	Mr Carroll was informed in writing of his retirement date (his 65th birthday 16.10.10) 6 months prior to his retirement date in line with company policy.
2. Mr Carroll was advised in writing that the company was not in a position to continue full time employment beyond that date.
3. On the 26th October, Mr Carroll was asked if he would consider a short term contract up to the 31st December 2010 and was advised that this would not be classed as continuous service.
4. Mr Carroll signed the short term contract acknowledging the fact that this would not be classed as continuous service.
5. The letter referred to in Mr Carroll’s submission dated 26.10.10 from his then Operations Manager, Damian Hunt, was in fact written and backdated after Mr Hunt was dismissed from the company for Gross Misconduct.”

5.	This letter was not in the bundle and was subsequently supplied.

6.	When the letter came before the Employment Tribunal, the Employment Judge essentially found the facts as I have already recounted them.  He noted that there was this ten‑day gap between the two periods of employment, but he relied upon section 139 of the Employment Rights Act 1996 to bridge that gap.  I read out the relevant parts of section 139:

“For the purposes of this Act, an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to—
(c) the employer has ceased or intended to cease—
(i) to carry on the business for the purpose of which the employee was so employed, or
(ii) to carry on that business in the place where the employee was so employed.”

7.	In fact, section 138 provides:

“(1) Where -
(a) an employee’s contract of employment is renewed or he is re-engaged under a new contract of employment in pursuance of an offer (whether in writing or not) made before the end of his employment under the previous contract, and
(b) the renewal or re-engagement takes effect immediately on, or after an interval of not more than 4 weeks after the end of that employment,
the employee shall not be regarded for the purposes of this Part as dismissed by his employer by reason of the ending of his employment under the previous contract.”

8.	Now, the part of the Act which is there referred to is chapter 2 headed “Rights on Dismissal by Reason of Redundancy”.  The Employment Judge concluded that the Claimant’s employment was continuous and the reason for the termination of his employment was redundancy, so he awarded him a redundancy payment.  I have already explained the basis of the opposition.  The matter came before HHJ Peter Clark on the sift, who referred the matter to a preliminary hearing that came before Slade J.  Slade J, who of course is thoroughly familiar with this area of the law, in sending the matter to a full hearing gave a short Judgment which has doubtless been supplied to the parties.  She said:

“In my judgment, the appeal from the decision of the Employment Tribunal does have a reasonable prospect of success.  It is arguable that section 138 of the Employment Rights Act 1996, upon which the Employment Judge relied to hold that there was continuity of employment including the period of employment which ended on 16 October 2010 so that on termination of the short-term contract in December 2010 the Claimant could claim a redundancy payment based on such continuity of employment up to that date.  The reliance thereupon of the Tribunal is challengeable on the basis that section 138 is a deeming provision that the employee shall not be regarded as dismissed from the first period of employment if the contract is renewed or he is re-engaged after a period of four weeks under a new contract.  It is arguable that section 138 is directed and restricted to the particular of the Employment Rights Act 1996 which it refers, namely a right to a redundancy payment, and it does not affect the continuity of employment provision.  Continuous employment in circumstances of the application of section 138 is catered for in section 213(2).  However, it is reasonably arguable that the ordinary continuity provisions apply, and that the Employment Judge erred in failing to hold that there was a break in continuity of employment when the first period of employment came to an end on 16 October 2010.”

9.	It is of course relevant that the Claimant’s original period of employment came to an end not by reason of redundancy but by reason that the contract automatically terminated on his 65th birthday.  There are interesting arguments that arise out of the interplay between the various provisions that I have referred to and also section 213.  There is authority for the proposition that it is open to parties effectively to determine that there had not been a continuous course of employment; see the decision of the Court of Appeal in Curr v Marks & Spencer [2002] All ER (D) 205.

Conclusion
10.	I have come to the conclusion that, in the absence of submissions being made by the Claimant or the Respondent dealing with this matter, it is inappropriate for me to carry out my own research and come to a conclusion based upon arguments and considerations the parties have not chosen to put before me.  The Respondent, whose appeal this is, has been represented by a Miss Palmer.  I am not certain who Miss Palmer is; she has sent correspondence to the Appeal Tribunal under the letter heading of an entity known as “Mac Capital”.  It appears that it was she who signed the ET3.  She also produced the skeleton argument that I read out.  She has also been spoken to by the Employment Appeal Tribunal today and maintains that she had informed the Employment Appeal Tribunal earlier that she was not attending.  There is no record of that on the file, but she made clear that she was not going to attend today.  The Claimant has also declined to attend today.  In those most unsatisfactory circumstances I decline to consider arguments that have not been raised by the parties, and, as the Respondent is not in a position to persuade me on the basis of what is in her skeleton argument or Notice of Appeal that there is an arguable ground of appeal, this appeal must stand dismissed.