Pacitti Jones v O'Brien
| Jurisdiction | Scotland |
| Judgment Date | 12 July 2005 |
| Neutral Citation | [2005] CSIH 56 |
| Date | 12 July 2005 |
| Court | Court of Session (Inner House) |
Employment law - Employment commencing 8 April 2002 and ending 7 April 2003 - Whether continuously employed for a period of not less than one year - Employment Rights Act 1996 (cap 18), sec 108(1)
Words and phrases - "Continuously employed for a period of not less than one year" - Employment Rights Act 1996 (cap 18), sec 108(1)
Section 108(1) of the Employment Rights Act 1996 provides that the right not to be unfairly dismissed does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination. Section 211(1) provides that an employee's period of continuous employment begins with the day on which the employee starts work. Section 210(2) provides that in any provision of the Act which refers to a period of continuous employment expressed in months or years (a) a month means a calendar month and (b) a year means a year of twelve calendar months.
An employee commenced employment on 8 April 2002. On 27 March 2003 a letter terminating her employment was delivered to her home. The employee was away and did not receive the letter until 31 March 2003. The employee's claim for unfair dismissal was dismissed by the tribunal on the ground that the respondent did not have the necessary qualifying period of employment to proceed with a claim for unfair dismissal. The Employment Appeal Tribunal held that the claim was admissible. The employers appealed to the Court of Session. Both parties accepted that the period of notice expired on 7 April 2003. The employer argued that the employee had not been continuously employed for the requisite period of one year as a period of one year from 8 April 2002 ended on 8 April 2003.
Held that: (1) the method by which time should be computed varied and in order to determine the appropriate method in any particular circumstances it was necessary to consider the relevant statutory or other provision in the context in which it had to be applied (para 8); (2) the period which began with 8 April 2002 and ended with 7 April 2003 was not a period of less than one year (paras 10-16); and appeal refused.
Claire O'Brien made an application to the Employment Tribunal claiming unfair dismissal. The tribunal dismissed the application. She appealed to the Employment Appeal Tribunal which upheld the appeal. The appellants appealed to the Court of Session.
Cases referred to:
Dodds v WalkerWLRUNK [1981] 1 WLR 1027; [1981] 2 All ER 609
Pruden v Cunard Ellerman LtdUNK [1993] IRLR 317
West v Kneels LtdICRUNK [1987] ICR 146; [1986] IRLR 430
Textbooks etc. referred to:
Coull, DC, "Time: Divisions of Time" in Stair Memorial Encyclopaedia: The Laws of Scotland (Butterworths/Law Society of Scotland, Edinburgh, 1987), vol 22, para 813
The cause called before an Extra Division, comprising Lord Hamilton, Lord Macfadyen and Lord Reed, for a hearing on the summar roll.
At advising, on 12 July 2005, the opinion of the Court was delivered by Lord Reed-
Opinion of the Court-
[1] This appeal raises a short but not unimportant point concerning the computation of time in connection with employment rights.
[2] On 8 April 2002 the respondent commenced employment with the appellants. On 27 March 2003 a letter terminating her employment was delivered to her home. Another copy of the letter was posted to her on the same date. The letter, which was dated 27 March 2003, stated: 'we are now terminating your employment with one week's notice from today'. The respondent was away from home on 27 March 2003, and did not receive the letter until 31 March 2003.
[3] The respondent then made an application to an employment tribunal, claiming that she had been unfairly dismissed. In response, the appellants maintained, as a preliminary point, that the respondent did not have the necessary qualifying period of employment to proceed with a claim for unfair dismissal. That...
To continue reading
Request your trial
- Wang v University of Keele
-
R (Zaporozhchenko) v City of Westminster Magistrates' Court
...before. He submitted that the first two decisions bind this Court. He also relied on the decision of the Court of Session in Pacitti Jones (a firm) v. Claire O'Brien 2006 SC 616 which concerned a time limit under the Employment Rights Act 2006 where an argument identical to that advanced be......
-
D.c. For Judicial Review Of A Decision To Return Him To Hospital Dated On Or About 8 December 2009 By Dr Ian Mitchell Nd A Decision Of The Mental Heal
...the decisions of the MHTS. [52] Counsel continued to the effect that the method of computing time varies with context [Pacitti v Jones 2006 SC 616 especially at § 8]. Counsel agreed with Counsel for the First Respondent et al that the uncertain meaning of the phrase "9 months" in section 12......
-
Mr Roberto Levy v 34 & CO Ltd
...period (if it does not span a leap year), so if it began on 29 October 2018 it would end on 28 October 2019: see Pacitti Jones v O’Brien [2005] IRLR 888. If a calendar month is in that way, then on the EJ’s finding there was one month’s employment. 37. G On the basis of that finding, Mr Tay......