Throsby v Imperial College of Science and Technology
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SHAW,LORD JUSTICE BRANDON |
| Judgment Date | 05 October 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J1005-1 |
| Docket Number | EAT/649/76 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 October 1978 |
[1978] EWCA Civ J1005-1
The Master of the Rolls (Lord Denning)
Lord Justice Shaw and
Lord Justice Brandon
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the Employment Appeal Tribunal
MR. J. HAND (instructed by Messrs. Casson & Co., Solicitors, Greater Manchester) appeared on behalf of the Applicants (Respondents).
MR. S. GOLDBLATT, Q.C. and MR. T. MORRISON (instructed by Messrs. Allison & Humphreys, Solicitors, London) appeared on behalf of the Respondents (Appellants).
These cases raise an important question under the statutory provisions about unfair dismissal. Two men were employed by the British Broadcasting Corporation at its premises in Manchester. They were described as "house services attendants". That is a grandiloquent way of describing a commissionaire or a porter.
First, Mr. Dixon. He started with the British Broadcasting Corporation in 1974. The conditions of his employment as a house services attendant were put into writing. His employment was specifically described as a "temporary engagement for an indefinite period". It was subject to the term that it could be determined by one week's prior notice in writing on either side. After he had been there 20 months, the B.B.C. decided that they would soon have no further need for his services and would have to give him notice to terminate his employment. But instead of giving him a long notice, they got him to sign a new written contract of employment for a short term. He signed a new contract of employment covering the period from the 1st February, 1976 to the 31st March, 1976, but the agreement contained these significant words: "… unless previously determined by one week's prior notice in writing on either side". But when the period expired on the 31st March, 1976 the B.B.C. decided that they would like to retain his services for another month. So they wrote to him as follows: "We would like to extend the duration of your fixed term contract for a further period of four weeks after 31st March 1976, the date on which its present term expires. We therefore propose that the term of your engagement should now expire on 1st May 1976, Clause 3 being amended to that effect. The other provisions of your contract will continue in force for the period of the extension".So there were two short periods of extension in 1976, each in a written form, each of which the employee signed, and each including these important words, "unless previously determined by one week's prior notice in writing on either side". Similarly with Mr. Constanti. On the 1st May, 1976 those short term renewals expired. Thenceforward the two men were no longer employed by the B.B.C.
Both men claimed for unfair dismissal or for redundancy payment. Those claims depended in the first instance on whether they had been "dismissed" within the meaning of the Act. If they had been "dismissed", the burden is on the employer to prove that the dismissal was not unfair. The Trade Union and Labour Relations Act 1974, Schedule 1, Part II, paragraph 4(1) says: "In every employment … every employee shall have the right not to be unfairly dismissed by his employer". If these men were "dismissed, the B.B.C. would no doubt say it was not unfair. The B.B.C. would say, "We only employed you temporarily. You knew that perfectly well: and when the temporary period cane to an end, you had to leave, so you have no cause for complaint". That is the sort of reason which Mr. Justice Phillips considered in Terry v. East Sussex County Council (1976) Industrial Cases Reports 536. But in this case the B.B.C. took a preliminary point. They said that these men were not "dismissed' at all within the meaning of the Act. The B.B.C. relied on the decision of this court in British Broadcasting Corporation v. Ioannou (1975) 1 Queen's Bench 781. They said that under the terms of their contract the employment of these men had come to an end. So they had not been dismissed at all. The industrial tribunal accepted that argument. It held that it had no Jurisdiction to go into the case because these men had not beendismissed.
When, then, is a man "dismissed"? Paragraph 5(2) gives a definition. It says: "… an employee shall be treated for the purposes of this Act as dismissed by his employer, if, and only if, - (a) the contract under which he is employed by the employer is terminated by the employer, whether it is so terminated by notice or without notice" - in this case that did not happen - "or (b) where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract". These men both said that they were employed for a "fixed term", albeit it was only four weeks, and that term expired without being renewed. So they were dismissed within the meaning of paragraph 5(2)(b).
That would seem to be a perfectly good ground for saying they were "dismissed". But the B.B.C. dispute it. They say that these men were not employed for a fixed term. Each agreement contained a term that it could be determined by one week's notice: and that means it was not for a "fixed term". It was so decided, they say, in the case of Ioannou. The case of B.B.C. v. Ioannou turned on another paragraph in the schedule. It is paragraph 12. That says that, when a man has a two-year contract, the employer can stipulate that the man shall have no right to compensation when that term comes to an end. The actual words are:
"Paragraph 4 (which gives the right to compensation) does not apply … (b) to dismissal from employment under a contract for a fixed term of two years or more, where the dismissal consists only of the expiry of that term without its being renewed, if before the term so expires the employee has agreed in writing to exclude any claim in respect of rights under thatparagraph in relation to that contract".
In British Broadcasting Corporation v. Ioannou (1975) 1 Queen's Bench 781 Mr. Ioannou was employed for three successive periods; first for three years: followed by two years: and lastly by one year. Each contained a term that it was determinable by three months' notice.
One ground for decision was that the only relevant period was the last period of one year. That was less than two years. So paragraph 12 of the Schedule did not apply. Paragraph 4 applied. So Mr. Ioannou was "dismissed" and could claim compensation for unfair dismissal.
The other ground of decision was that a "fixed term" is one that cannot be unfixed by notice. To be a "fixed term" the parties must be bound by the term stated in the agreement: and unable to determine it by notice on either side. Assuming, therefore, that Mr. Ioannou's contract was for six years, it was not a "fixed term" because it could be determined by three months' notice.
That second ground had not been taken in the courts below. It was taken by this court itself. Now after further consideration, I desire to say at once that that second ground was mistaken. It was a wrong ground. We did not in that case refer to paragraph 5(2)(b). If we had...
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