Shepherd (F.C.) & Company Ltd v Jerrom
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,LORD JUSTICE MUSTILL,LORD JUSTICE BALCOMBE |
| Judgment Date | 21 July 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0721-1 |
| Docket Number | 86/0611 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 July 1986 |
[1986] EWCA Civ J0721-1
Lord Justice Lawton
Lord Justice Mustill
Lord Justice Balcombe
86/0611
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR JUSTICE WAITE)
Royal Courts of Justice
MISS E. A. SLADE, instructed by Messrs Capstick Hamer & Co., appeared for the Appellant (Appellant).
MR P. C. L. CLARE, instructed by Messrs Brian Thompson & Partners, appeared for the Respondent (Respondent).
This is an appeal by employers, F. C. Shepherd & Co. Ltd., against the affirmation by the Employment Appeal Tribunal of a decision of an Industrial Tribunal whereby they had adjudged that an apprentice, Mark Terence Jerrom, had been unfairly dismissed because the employers would not take him back as an apprentice after his release from sentences of Borstal training passed upon him for conspiracy to assault and affray. To compensate him for this refusal, the Industrial Tribunal had awarded him the maximum amount for a compensatory award, namely £7,000. The Employment Appeal Tribunal also affirmed this award. Many members of the public may think, learning what has happened, that the works of justice are wonderful to behold. Seldom can an appeal from an Industrial Tribunal have raised more difficult points of law.
The employers are builders trading from premises in Lambeth. They employ between 50 and 60 men. On September 10th 1979 the employers, who are members of the National Federation of Building Trades Employers, took on Mark Jerrom as an apprentice. On June 20th 1980 both the employers and apprentice entered into a training service agreement, whereby the apprentice undertook to serve a full term as the employer's apprentice. This would have been for four years. The apprentice's father was a party to the agreement, as was the Joint Industry Board for Plumbing Mechanical Engineering Services in England and Wales (JIB). Incorporated in the agreement were JIB's regulations relating to apprentices.
Some time between June 1980 and June 25th 1981 the apprentice conspired with other members of the social group to which he belonged to have a "punch up" with a rival group. Later, pursuant to that conspiracy, he took part in an affray. In the course of it a youth was killed. The apprentice was indicted for manslaughter, conspiracy to assault and affray. On June 25th 1981 he was acquitted of manslaughter but convicted of the other two offences. He was sentenced to Borstal training, that is to say to an indeterminate period involving the loss of liberty for not less than six months or more than two years. At the date when sentenced, the probability was that he would serve 39 weeks, less if his behaviour in custody was excellent (as it was) or more if it was not.
In September 1981 the apprentice's father asked a probation officer to find out whether the employers would allow the apprentice to continue his training when he was released from Borstal. The employers said they would not. This answer was communicated to the father by the probation officer by letter dated September 16th 1981. By letter dated September 17th 1981 the employers told the JIB that the apprentice had been sentenced to Borstal training and that they would like to terminate the apprentice's training agreement and asked them to make "the necessary arrangements". The Industrial Tribunal made no specific finding with regard to the effect of the employer's conversation with the probation officer on September 16th or of their letter dated September 17th: but on the facts the Employment Appeal Tribunal adjudged that in September 1981 the employers "had not yet made their attitude towards (the apprentice's) return sufficiently clear and unequivocal to constitute an implied acceptance of the contract's repudiation". In my opinion this was a surprising finding but the terms of the letter provided some evidence for it.
On January 6th 1982 the apprentice was released from Borstal. Soon afterwards he asked the employers by letter and telephone to allow him to continue his training as an apprentice. They refused to do so. On March 26th 1982 he applied to the Secretary of Tribunals for a decision as to whether he had been unfairly dismissed. On the standard form of application he stated that his employment had ended on June 25th 1981 and that "at a later date" (which had been September 16th 1981) his employers had informed his probation officer that his services had been terminated. The employers gave a notice of appearance dated April 6th 1982. In it they stated that the apprentice had been dismissed for "repudiatory conduct". They gave particulars of the "repudiatory conduct" in these terms: "We consider the impossibility of performance arising from the (apprentice's) absence from work…to be repudiatory conduct". When sending this notice of appearance to the Secretary of Tribunals, the employer's national federation asked that there should be a preliminary hearing to decide whether the Industrial Tribunal had jurisdiction to hear the apprentice's application which they alleged was out of time, as it clearly was if "the dismissal" which the notice of appearance referred to had occurred at any time before December 26th 1981. By notice dated April 21st 1982 the Regional Office told both the employers and the apprentice that on May 7th 1982 there would be a hearing limited to consideration of a preliminary issue "whether, having regard to the time limit contained in section 67(2) of the Employment (Consolidation) Act, 1978 a tribunal has jurisdiction to consider the applicant's complaint of unfair dismissal".
The hearing of the preliminary issue was in fact held on June 18th 1982. The apprentice attended, represented by his father. The employers were represented by an officer of the National Federation who was qualified as a solicitor. No oral evidence was given. The employers' representative put in evidence a bundle of correspondence and the JIB's rules. The Industrial Tribunal, of their own motion, suggested "that it is not usually possible to dismiss an apprentice unless there is first an investigation and consent by the board for the trade under the terms of the apprenticeship deed". The chairman asked to see the training service agreement. The employers produced it. Their representative, sensing that the Industrial Tribunal might be thinking that the sentence of Borstal training had not brought the apprenticeship to an end, submitted that there had not been a dismissal. If the apprentice had not been dismissed he had no claim against his employers. It seems, from the chairman's note made long afterwards, that the Industrial Tribunal was of the opinion that they "should adjourn sine die while the parties returned to the board to prevent injustice on a technicality".
The first question to be decided in this appeal is whether the Industrial Tribunal did adjourn the hearing of the preliminary issue. Mr Clark on behalf of the apprentice submitted that they did; Miss Slade on behalf of the employers submitted that they purported to adjourn after having made a finding that the apprentice had never been dismissed. That two experienced members of the Bar should each be able to put forward these divergent submissions arises from the inept way in which the chairman recorded the Industrial Tribunal's decision. Under the heading "Decision" came these words:
"The unanimous decision of the Tribunal is that the applicant has never been dismissed and is still employed as an apprentice under the terms of his apprenticeship agreement with the respondents dated 20 June, 1980. These proceedings are adjourned sine die for the reasons appearing below."
Under the heading "Reasons", the chairman wrote that the agreement had not been ended and that there had been no dismissal. Nevertheless I am satisfied, when this document is read as a whole, and in the light of what had happened on June 18th 1982, that the Industrial Tribunal did not intend to give a final decision on the preliminary issue.
On July 7th 1982 the local conciliation panel of JIB met to consider whether to accede to the employer's request that the apprentice's training service should be terminated. The apprentice was present as were representatives of the employers. The panel decided that the termination of the agreement should be refused on the ground that the offences of which the apprentice had been convicted had no relevance to the performance of his work as a plumber's apprentice.
This decision was unacceptable to the employers. They consulted their solicitors who, by letter dated February 4th 1983, wrote to the Central Office of Tribunals recounting what had happened and recording that at the hearing on June 18th 1982 it had not been argued either that the training service agreement had been frustrated or alternatively that the apprentice had repudiated it by committing the offences of which he was convicted. They ended their letter by asking for the Industrial Tribunal to reconvene, since the original hearing had been adjourned sine die, or to agree to review such decision as they had made. The Assistant Secretary decided that the parties should return to the Industrial Tribunal for a full hearing. When the Industrial Tribunal did reconvene on June 17th 1983 they purported to hear the apprentice's claim in full. If, as I adjudge, the first hearing had been adjourned there was no decision to be reviewed: see the definition of "decision" in Regulation 2 of the Industrial Tribunals (Rules of Procedure) Regulations 1980 and paragraph 10 of the Schedule thereto. The apprentice was once again represented by his father; the employers were...
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...also be considered whether it was reasonable for the employer to hire someone else on a permanent as opposed to a temporary basis. 37 [1987] 1 QB 301. 38 See also Sathiaval a/l Maruthamuthu v Shell Malaysia Trading Sdn Bhd[1998] 1 MLJ 740. 39 Shepherd & Co Ltd v Jerrom [1987] 1 QB 301. This......