In deciding whether in the case of employment under a series of short contracts the intervals between the contracts amount to temporary cessation of work, one must look back from the date of termination of the employment over the whole period during which the employee has been employed. There is a material difference in law between the calculation of continuity for the purposes of redundancy, and the right to apply under Part X in relation to unfair dismissal.
Lord Diplock said: ‘There are many employments, of which teaching is one of the largest and most obvious, in which it is perfectly possible to predict with accuracy the periods in which the educational institution at which a teacher is employed to conduct courses in particular subjects will have no work available for that teacher to do ie, during the three annual school holidays or during vacations at universities and other institutions of further education. As the evidence in the instant case discloses, it is common practice to employ part-time teachers of courses at institutions of further education under successive fixed term contracts the length of which is fixed according to the duration of the particular course and expires at the end of it. In the interval between successive courses which may coincide with the end of one academic year at an institution of further education and the beginning of the next but may be considerably longer, there is no work available at the institution for the teacher to do, and he remains without any contract of employment until the course is resumed, when he again becomes employed under a fresh fixed term contract.
A somewhat similar practice is followed in relation to what are known as ‘supply teachers’ in schools, although in their case each fixed term contract is for a single term only. During each of the three annual school holidays between school terms the supply teacher has no contract of employment.’ and
‘So the continuity of employment for the purposes of the Act in relation to unfair dismissal and redundancy payments is not broken unless and until, looking backwards from the date of the expiry of the fixed term contract on which the employee’s claim is based, there is to be found between one fixed term contract and its immediate predecessor an interval that cannot be characterised as short relatively to the combined duration of the two fixed term contracts. Whether it can be so characterised is a question of fact and degree and so is for the decision of an Industrial Tribunal rather by the Employment Appeal Tribunal or an appellate court of law.’
Judges:
Lord Diplock
Citations:
[1983] ICR 273, [1983] IRLR 126
Jurisdiction:
England and Wales
Cited by:
Cited – Cornwall County Council v Prater CA 24-Feb-2006
The claimant worked for the local authority under a series of contracts. The employer denied that she had been continuously employed and there was no ‘irreducible minimum mutual obligation necessary to create a contract of service’. There were times . .
Cited – Pfaffinger and Another v City of Liverpool Community College and Another EAT 4-Mar-1996
The EAT considered the status of part time lecturers of courses at colleges of higher education. They were employed on fixed term contracts for a term at a time. The court was asked whether, if a contract was not renewed, that amounted to a . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 01 May 2022; Ref: scu.238721