Fitzgerald v Hall, Russell & Company Ltd

JurisdictionEngland & Wales
JudgeLord Reid,Lord Morris of Borth-y-Gest,Lord Guest,Lord Upjohn,Lord Wilberforce
Judgment Date21 October 1969
Judgment citation (vLex)[1969] UKHL J1021-1
CourtHouse of Lords
Docket NumberNo. 1.

[1969] UKHL J1021-1

House of Lords

Lord Reid

Lord Morris of Borth-y-Gest

Lord Guest

Lord Upjohn

Lord Wilberforce

Fitzgerald
and
Hall Russell and Company Limited

Upon Report from the Appellate Committee, to whom was referred the Cause Fitzgerald against Hall Russell & Company Limited, that the Committee had heard Counsel, as well on Monday the 7th as on Tuesday the 8th, days of July last, upon the Petition and Appeal of Anthony Fitzgerald, 12 Forresterhill Road, Aberdeen, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland of the First Division of the 20th of November 1968, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutor, might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Hall Russell & Company Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Interlocutor, of the 20th day of November 1968, complained of in the said Appeal, be, and the same is hereby, Recalled, and that the Cause be, and the same is hereby, remitted back to the Industrial Tribunal with a Direction to proceed in accordance with the majority Opinions expressed in this House: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Expenses incurred by him in respect of the Action in the Court of Session and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within one calendar month from the date of the Certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Judge acting as Vacation Judge, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.

Lord Reid

My Lords,

1

For the reasons given by my noble and learned friend, Lord Upjohn, I would allow this appeal and remit the case to the Tribunal.

Lord Morris of Borth-y-Gest

My Lords,

2

On the 8th December, 1967, the Appellant was dismissed by the Respondents, his employers, by reason of redundancy. He was entitled to a redundancy payment. An issue arose as to the period of continuous employment by reference to which his payment was to be calculated. It was held by the Industrial Tribunal that his qualifying service for a redundancy payment commenced on the 21st January, 1963. He had, however, been employed by the Respondents prior to that date. He was employed by them as a welder from the 31st July, 1958. He contended that upon a proper application of the law relating to redundancy payments his qualifying service ought to have been held to begin from that date. But there had been an interruption in his employment which lasted from the 28th November, 1962, to the 21st January, 1963, (a period of nearly eight weeks).

3

The question for the decision of the Tribunal was whether that period constituted a break in the Appellant's service. The Tribunal held that it did. The Appellant's appeal was refused by their Lordships of the First Division of the Court of Session from whose Interlocutor the present appeal is brought. The principal question of law which arises concerns the construction of certain words in the Contracts of Employment Act, 1963, which Act is incorporated by reference in the Redundancy Payments Act, 1965.

4

By virtue of section 1 (1) of the 1965 Act a redundancy payment is to be calculated in accordance with Schedule 1 to the Act. The subsection is in the following terms:

"1. (1) Where on or after the appointed day an employee who has been continuously employed for the requisite period—

  • ( a) is dismissed by his employer by reason of redundancy, or

  • ( b) is laid off or kept on short-time to the extent specified in subsection (1) of section 6 of this Act and complies with the requirements of that section,

then, subject to the following provisions of this Part of this Act, the employer shall be liable to pay to him a sum (in this Act referred to as a 'redundancy payment') calculated in accordance with Schedule 1 to this Act."

5

The terms of paragraph 1 (1) of Schedule 1 are as follows:

"1. (1) The amount of a redundancy payment to which an employee is entitled in any case shall, subject to the following provisions of this Schedule, be calculated by reference to the period, ending with the relevant date, during which he has been continuously employed; and for the purposes of this Schedule that period shall be computed in accordance with Schedule 1 to the Contracts of Employment Act 1963, but as if—

  • ( a) any week which began before the employee attained the age of eighteen were excluded, and

  • ( b) the continuity of an employee's period of employment were not broken by a week which does not count under that Schedule, if the whole or part of that week falls within any such interval as is referred to in section 8(3) of this Act."

6

The provisions of section 8 subsections ( 1) and (2) of the 1965 Act are as follows:

"8. (1) For the purposes of section 1 (1) of this Act the requisite period is the period of one hundred and four weeks ending with the relevant date, excluding any week which began before the employee attained the age of eighteen.

(2) Subject to the preceding subsection, and to the following provisions of this section, the provisions of Schedule 1 to the Contracts of Employment Act 1963 (computation of period of employment), and the provisions of any order for the time being in force under section 7 of that Act in so far as it modifies that Schedule, shall have effect for the purposes of this Part of this Act in determining whether an employee has been continuously employed for the requisite period."

7

As it was common ground that after his dismissal on the 8th December, 1967, the Appellant became entitled to a redundancy payment the only issue was as to its amount: that issue in turn depended upon the length of the period of his continuous employment. By reason of the provisions of section 8 (2) of the 1965 Act the provisions of Schedule 1 to the Contracts of Employment Act, 1963, had effect in determining that period. One of the objects of that Act is to require a minimum period of notice to terminate the employment of those who have been employed for a qualifying period. Under the Act the period of notice to which an employee is entitled before his employment is determined has relation to the continuity of the period of his employment. There are varying periods of notice. Thus, the notice required to be given by an employer to a person who has been continuously employed for twenty-six weeks or more must be not less than a week if the period of "continuous employment" is less than two years: or not less than two weeks if the period is two years or more but less than five: or not less than four weeks if the period is five years or more.

8

Provisions were made, by Schedule 1 of the Act, for ascertaining the length of an employee's period of employment and for determining whether that period of employment had been continuous. When those provisions are looked at it will be seen that their effect, doubtless to produce results that would seem only reasonable and fair, is that some periods of employment are to be regarded as having been continuous, though they were not in fact continuous. Those provisions are in turn picked up by the 1965 Act and the period of continuous employment for the purpose of calculating redundancy payments is computed in accordance with the provisions of Schedule 1 to the 1963 Act.

9

Under paragraph 3 of that Schedule under the heading "normal working weeks" it is provided that any week in which the employee is employed for twenty-one hours or more "shall count" in computing a period of employment. There is a general provision (see paragraph 2) to the effect that (except as otherwise provided) any week which does not "count" under paragraphs 3 to 6 breaks the continuity of the period of employment.

10

Under the heading of "Employment governed by contract" paragraph 4 provides that if in a week an employee's relations with his employer are governed by a contract of employment which normally involves employment for twenty-one or more hours weekly such week shall "count".

11

The next paragraph (5) has the contrasting heading "Periods in which there is no contract of employment". It provides as follows:

"5. (1) If in any week the employee is, for the whole or part of the week—

  • ( a) incapable of work in consequence of sickness or injury, or

  • ( b) absent from work on account of a temporary cessation of work, or

  • ( c) absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for all or any purposes,

that week shall, notwithstanding that it does not fall under paragraph 3 or paragraph 4 of this Schedule, count as a period of employment.

(2) Not more than twenty-six weeks shall count under paragraph ( a) of the foregoing sub-paragraph between any two periods falling under paragraphs 3 and 4 of this Schedule.

(3) Paragraph ( b) of sub-paragraph (1) of this paragraph shall not apply to a temporary cessation of work on account of a strike in which the employee takes part."

12

The general effect of this paragraph is that some weeks may "count" even though during them the...

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