Appeal No. EAT/0241/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 June 2001

Before
HIS HONOUR JUDGE PETER CLARK
MRS A GALLICO
MR G H WRIGHT MBE

MR S M JANJUA	APPELLANT

METAL COLOURS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANT	

JUDGE PETER CLARK

1.	This is an appeal by Mr Janjua against a decision of the Reading Employment Tribunal, promulgated with extended reasons on 9 January 2001, dismissing his complaints of unfair dismissal, wrongful dismissal and unlawful race discrimination against the Respondent, Metal Colours Ltd.

2.	The events leading to the Appellant’s dismissal in June 2000, so the Tribunal found, were these.  The work, in which the Appellant was engaged, with others, required him to take breaks in order to drink water.  In that month, the Appellant was seen leaving the Harwich Avenue, Slough site at which he worked and going to the canteen in Cambridge Avenue in order to get water.  

3.	He was spoken to by Mr Seneviratne, the Financial Director, and Mr Symes, the Commercial Director about this practice, on 12 June.  He was told that he should take water from the nearest point to his workplace in Harwich Avenue, the toilets there.

4.	The Appellant took this instruction to be an act of humiliation by the Directors, directed solely to him.  The Tribunal rejected that suggestion; they accepted evidence to the effect that all those working at Harwich Avenue took their water from the toilets there – even the Appellant’s uncle, a fellow employee, confirmed that fact.

5.	Having formed this mistaken view, the Appellant was determined Mr Symes should make a public apology for this perceived insult to him.  He tackled Mr Symes about it at the Harwich Avenue site on 16 June.  The Employment Tribunal found that on that occasion the Appellant appeared threatening and, in front of the workforce, shouted uncontrollably at Mr Symes.
6.	The latter felt threatened; he eventually persuaded the Appellant to accompany him to his office, where he summarily dismissed him.

7.	On these facts, the Tribunal found that there was no question of racial discrimination.  Employees of all races and ethnic origin; English, West Indian and Indian (the Appellant was Pakistani), were required to obtain water from the same toilets.  There was no less favourable treatment of the Appellant.

8.	As to the claim of wrongful dismissal, the Tribunal were satisfied on the evidence that the Appellant’s conduct in abusing Mr Symes entitled the Respondent to dismiss him without notice at common law.

9.	Finally, unfair dismissal.  The Tribunal did not deal with the merits of that complaint because a point was successfully taken by the Respondent that the Appellant did not have sufficient service (1 year) to qualify for unfair dismissal protection.

10.	The Appellant commenced employment with the Respondent on 7 August 1997.  The Respondent has always had a multi-ethnic workforce.  The annual shutdown is taken during the last week in July and the 1st week of August.  However, employees with roots and family abroad frequently sought permission to take leave outside the shutdown period in order to attend family weddings, funerals and the like.

11.	Sometimes this facility was abused and so the Respondent developed a practice, recognised by the workforce, whereby if employees wished to take leave outside the authorised holiday period, they were required to sign a letter acknowledging, first that the leave was unpaid and secondly that upon their return, the Respondent was under no obligation to offer them their old position back.

12.	In August 1999 the Appellant’s father died in Pakistan.  At the time he was off sick but was persuaded by his family in Pakistan to return for the funeral.  There was a conflict of evidence before the Tribunal.  

13.	The Appellant’s evidence was that he told the Respondent that he was going to Pakistan but would return in 2-3 week’s time.  Mr Walker, the Respondent’s Accountant and Bacchitar Singh, the shop floor Manager, both told the Tribunal that they had been informed that the Appellant was leaving the Respondent to return home to Pakistan.  Both spoke to the Appellant and asked him when he would be returning to England to be told that he did not know if he would be returning.  

14.	The Tribunal preferred the evidence of the Respondent’s witnesses, not least because they were satisfied that had the Appellant expressed his intention to return, the Managers would have obtained his signature to the usual letter to which we have referred.  That did not happen.

15.	The Appellant said his farewells to the workforce, had photographs of himself taken at the factory and left on 24 August 1999.

16.	In fact, the Appellant returned to England on 25 September 1999 and thereafter presented him at the Respondent’s premises asking for work.  Mr Seneviratne was surprised to see him and told him to come back the next day.  The Appellant did so and was given a more junior, less well-paid position than he had formerly held in the paint shop at Harwich Avenue.  He accepted the offer and returned to work.

17.	On these facts, the Tribunal accepted the Respondent’s submission that there had been a break in the Appellant’s continuity of employment between 24 August and 29 September 1999.  Consequently he had not completed one year’s continuous service by 16 June 2000.

18.	Section 210(5) of the Employment Rights Act 1996 provides that a person’s employment during any period shall, unless the contrary is shown, be presumed to have been continuous.  Thus the presumption here is that the Appellant was continuously employed from 7 August 1997 until 16 June 2000, more than the 1 year qualifying period required by Section 108(1) of the Employment Rights Act 1996.

19.	The Respondent sought to rebut that presumption on the facts, by reference to Section 212 of the Employment Rights Act 1996.  By sub-section 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 completing his period of employment.  

20.	The Tribunal accepted the Respondent’s contention that during the period 24 August – 25 September 1999, there was no contract of employment between the parties and that there was no arrangement or custom whereby during his absence of work during that period he would be regarded as continuing in the employment of the Respondent for any purpose.  Employment Rights Act 1996 Section 212(3)(c), as had been argued on behalf of the Appellant.  In these circumstances, continuity had been broken.  Against that decision, this appeal is brought.

21.	This morning we received a fax transmission from the Slough Citizens Advice Bureau, signed by Mr Ali the Director, seeking on behalf of the Appellant an adjournment of today’s Preliminary Hearing.  Mr. Janjua did not approach Mr Pernell of the Slough Race Equality Council, who was his original representative but approached the Citizens Advice Bureau last Friday for assistance.

22.	It was not possible to arrange representation for him today but a written submission was prepared and has been submitted this morning.  We are asked to postpone the hearing unless there are cost implications for Mr Janjua.  If there are, then he would wish the hearing to go ahead.

23.	Complaint is also made that representatives for the Respondent have not exchanged bundles or skeleton arguments for today’s hearing.  That represents a misunderstanding.  This Preliminary Hearing is held ex parte; that is, without requiring the Respondent to attend, although observers do from time to time attend Preliminary Hearings and we notice that there is an observer here today on behalf of the Respondent.

24.	The complaint is made that it would be unfair for the case to proceed when Mr Janjua did not have legal representation.  Together with the Notice of Hearing sent to Mr Janjua earlier this month was the standard form document which informs unrepresented Appellants that they may, if they wish, take advantage of the ELAAS Probono scheme.  That is an invaluable service provided by members of the bar and solicitors entirely free, to provide representation at Preliminary Hearings.

25.	Mr Janjua appears to have returned that form, confirming that he would attend and arrive at least an hour before the hearing was due to start, as opposed to indicating that he did not wish to use the ELAAS scheme.  This morning Mr Raoul Downey of Counsel, experienced in employment law, has made himself available to represent Mr Janjua.  Mr Janjua has not turned up.

26.	In these circumstances there is no cost implication to Mr Janjua if the matter is adjourned, but we consider that there are further considerations.  First, this Tribunal has assembled at public expense to hear the appeal today.  There is no good reason why it should not deal with it.  Secondly the Respondents have sent an observer to hear the outcome of this case and thirdly Counsel has given up his professional time in order to assist the Appellant.  In these circumstances we have no hesitation in rejecting the adjournment application.

27.	So far as the substance of the appeal is concerned, the written submission was directed solely to the Tribunal’s finding on continuity of employment.  As to that, the finding of fact is clear and adverse to the Appellant.  The Tribunal’s finding is that there was no arrangement, prior to his leaving in August 1999, to treat his employment as continuous.

28.	We take the view that such an arrangement must pre-date a period of absence, following the Employment Appeal Tribunal’s decision in Murphy v A Birrell & Sons Ltd [1978] IRLR 458, in preference to that in Ingram v Foxon [1985] IRLR 5; the reasons which I gave in Morris v Walsh Western UK Ltd [1997] IRLR 562.  In these circumstances there is no question of there being any arguable point of law as to the Tribunal’s finding that there was a break in continuity of employment.

29.	For completeness, the grounds of appeal in the Notice dated 15 February 2001, raise faintly an appeal against the finding that there was no unlawful discrimination on the basis that the Tribunal did not take into account the weight of evidence before it.  It seems to us that that ground of appeal is wholly misconceived.

30.	Our jurisdiction is limited to correcting errors of law, not re-trying the facts.  The Tribunal’s finding of fact that all workers at the same site as the Appellant were required to take their water from the same place, wholly supports the Tribunal’s conclusion that there was here no less favourable treatment of the Appellant and accordingly this appeal is dismissed.