McLaughlin v Western Health & Social Services Board  (Unfair Dismissal)  (28 February 2002)
THE INDUSTRIAL TRIBUNALS

CASE REF:	2335/01

APPLICANT:	Patricia McLaughlin

RESPONDENT:	Western Health & Social Services Board   

DECISION
The unanimous decision of the tribunal is that the applicant is disqualified from the right not to be unfairly dismissed by the provisions of Article 140 of the Employment Rights (Northern Ireland) Order 1996 regarding a minimum period of continuous employment.  The tribunal declines to award costs against the applicant.  

The reasons are given in summary form.
Appearances:
The applicant was represented by Mr A Montgomery, Barrister-at-Law, instructed by John McKee & Son, Solicitors.
The respondent was represented by Ms J Turkington, Solicitor, of the Directorate of Legal Services, Central Services Agency.  

THE ISSUE

1.	This case came before the tribunal as a preliminary hearing on the issue as to whether or not the applicant was disqualified from the right not to be unfairly dismissed by the provisions of Article 140 of the Employment Rights (Northern Ireland) Order 1996 regarding a minimum period of continuous employment.  As it was not in contention that the applicant was employed by the respondent and had been dismissed, the tribunal had to determine, in order to establish jurisdiction as a preliminary issue, and having regard to the provisions of Article 140(1) of the Order which require an employee to establish that the employee has been continuously employed for a period of one year ending with the effective date of termination of the employment contract, when the period of employment was deemed to have commenced for the purposes of such continuity of employment and when this was deemed to have ended.

2.	The tribunal made the following findings of fact: 

THE BACKGROUND

3.	The applicant commenced employment as a shorthand typist working at the Altnagelvin Hospital, Londonderry, in or about June 1985.  The tribunal notes that, by virtue of the Health & Personal Social Services (Northern Ireland) Order 1991, Health & Social Services Trusts were established and the functions of the National Health Service in Northern Ireland were transferred to these various Trusts.  The hospital where the applicant was then employed fell under the auspices of the Altnagelvin Health & Social Services Trust.  That Trust, together with the Foyle Health & Social Services Trust and the Sperrin & Lakeland Social Services Trust, were at the material time and are administered by the Western Health and Social Services Board.  A body known as “Westcare Business Services” maintains service level agreements to provide certain defined services to these three Trusts and also to the Western Health & Social Services Board.  The services provided by Westcare Business Services include personnel services, occupational health management, information technology services, payroll functions and other services including assisting in the business of recruitment and selection of employees.

4.	In the particular circumstances of this case, the tribunal was concerned with a recruitment system whereby Westcare Business Services advertised for and secured applications on behalf of individuals who desired to be recruited.  These persons were then subjected to selection by means of shortlisting criteria and testing, with a view to any such persons who were then adjudged to be suitable being placed on a vacancy register.  When a suitable vacancy arose in any of the Trusts, an approach was made by that Trust to Westcare Business Services with a view to compiling a list of potential applicants for any particular vacant post.  Selected persons from the vacancy register were then subject to final selection and to interview, in order to fill any vacancies.  

5.	The tribunal heard and accepted the evidence of Ms Margaret Neilly, Head of Human Resources of Westcare Business Services and Personnel Director of the Western Health & Social Services Board, to the effect that press advertisements were placed in six local newspapers circulating in the North West region of the Province between the 4th and the 6th October 2000 in respect of the post of personal secretary (Grade 3), for an immediate vacancy in the Family and Childcare Team, and also for the purpose of renewing the Western Health and Social Services Board’s register for such permanent or temporary vacancies as might arise within the following six months.  In addition to press advertising, it was also the practice that vacancies arising would be placed on a list, which was then circulated by the Central Services Agency to Health and Social Services Boards and Trusts in Northern Ireland.  The Central Services Agency lists or bulletins, prepared on a weekly basis, were then posted at suitable locations in order to advertise any such vacancies to interested persons.  Sometimes the practice was to advertise these vacancies merely by means of these bulletins; sometimes this was done only by external press advertising; sometimes this was effected by both means.  The tribunal heard no evidence as to why one, or other, or indeed both, of these means would have been employed, save that it was indicated that in a maternity leave situation the method of bulletin advertising would have been exclusively used rather than external press advertising.  

6.	Ms Neilly was unable to verify from reference to any records that the particular vacancy material to this case was advertised by means of a bulletin being posted.  The applicant, conversely, was quite insistent that she did not see this vacancy advertised in the press but rather that the existence of the vacancy came to her attention by means of her seeing a posted bulletin.  The tribunal, however, does not regard the disparity between the applicant’s evidence and Ms Neilly in that regard to be of any material significance for the reason that the tribunal does accept, having seen the evidence of this, that there was external advertising in regard to the post in question.  Whether this was coupled with internal advertising has no material bearing on any issue in this case. 

7.	The applicant responded to the advertised post and she was shortlisted and tested and then was interviewed for the post.  She was successful in her application.  On 23rd January 2001 the applicant’s employment with Altnagelvin Hospital Health & Social Services Trust came to an end, by notice.  Her date of leaving was 2nd February 2001 (which was a Friday).  The applicant commenced work the following Monday, 5th February 2001, with the Western Health & Social Services Board in the permanent post of personal secretary, based at the Area Board Headquarters at Gransha Park, Londonderry.  It was not in contention that the applicant was dismissed from this post on 10th May 2001 and the circumstances of her dismissal are not material to this preliminary issue.  In her application to this tribunal the applicant contended that her employment with the respondent was to be deemed continuous from June of 1985 until 10th May 2001 and that accordingly that the tribunal had jurisdiction to deal with her complaint of unfair dismissal contained in the said application.  The tribunal therefore was required to determine, as a preliminary issue, whether or not that contention was correct.

8.	On 8th February 2001 the applicant signed a number of documents which included the acceptance of an offer of employment as detailed in a letter addressed to the applicant dated 5th February 2001.  This was from Western Health and Social Services Board, and the letter set out in some detail the terms and conditions attaching to the post.  In a schedule to that letter, at paragraph 14, the schedule states:-  

 “DATE OF COMMENCEMENT OF CONTINUOUS EMPLOYMENT WITH THIS BOARD:  5 February 2001”. 

	In brackets, as a part of that clause and following immediately thereafter are the words: 

“However for certain terms and conditions of service previous employment with another Health Service Authority may be regarded as continuous subject to the rules set out in the appropriate Board Handbook”.  

The schedule to the letter set forth such matters as the identity of the post, the date appointed (being 5th February 2001), the job duties, hours of duty and the payscale together with other such information.  Further documentation was also prepared to give effect to the appointment including wages payment arrangements, and the tribunal noted that documentation.  

THE TRIBUNAL’S FINDINGS

9.	On the basis of the facts adduced in evidence by Ms Neilly, the tribunal found that as a matter of contract for the post in question continuity of previous service with another Trust or employer in the area of Health & Personal Social Services did count for the attainment and calculation of certain contractual benefits.  These would have included the following:-

(a)	Sick pay;
(b)	Maternity leave;
(c)	Entitlement to annual leave;
(d)	Incremental credits based on length of service; and
(e)	Pension rights. 

However, in reaching a determination as to whether or not, as a matter of contract or on foot of any other cause, the statutory protection afforded in the event of unfair dismissal also applied, the tribunal further considered any evidence before it and the submissions of the respective parties in regard to the position especially in regard to the continuity of service issue.

10.	The tribunal noted particularly the schedule to the said letter dated 5th February 2001 and paragraph 14 of that schedule which has been referred to above.  Despite the contention on the part of the applicant’s representative that the words:  “DATE OF COMMENCEMENT OF CONTINUOUS EMPLOYMENT WITH THIS BOARD:  5 February 2001”, should be construed as meaning, when read with the words in brackets immediately following thereafter, that continuity would be conferred in respect of all relevant employment rights, the tribunal had great difficulty in accepting that construction.  The reason for the tribunal being of that opinion was as follows:-

(a)	Looking at the words in brackets it is clearly stated that for certain terms and conditions of service previous employment with another Health Service Authority might be regarded as continuous subject to certain rules which are set out in the appropriate Board Handbook.  Upon examination these rules relate to such specific things as protection of conditions of service in respect of hours and annual leave, amongst other matters.  The tribunal failed to ascertain any logical reason why specifically identified terms and conditions would have been referred to at all if the general proviso was intended to apply that for all statutory or other purposes continuity of employment would be preserved.  This latter proposition was the conclusion which the tribunal was being invited to take by the applicant’s representative.  It could not be accepted.

(b)	The applicant’s representative in his submissions attached significance to the express use in the said schedule of the expression “CONTINUOUS EMPLOYMENT”.  However, the tribunal notes the statutory requirements of the Employment Rights (Northern Ireland) Order 1996, Article 33(3)(c), which Article provides that the statement of particulars required to be given by an employer to an employee must state the date upon which the employee’s period of continuous employment began, taking into account any employment with a previous employer which counts towards that period.  In using the expression “Continuous Employment”, the tribunal takes the view that the respondent was doing nothing more than expressly referring to and fulfilling this statutory requirement.  Any other interpretation of the wording would have had the effect that the employer had failed to fulfil that statutory requirement.  The tribunal does not accept the proposition that there is any ambiguity but feels that, even if there was ambiguity, the preferred construction should favour what the tribunal sees as being the clear words on the page, to the effect that the continuous employment commenced on the 5th of February 2001, as being by far the most probable interpretation.  

(c)	The tribunal notes the content of both paragraphs 13 and 21 of the Board’s Handbook, as adduced in evidence.  Paragraph 13 illustrates particular circumstances where employees are required to move to a new post and are entitled to protection of the period of notice appropriate to the former post.  Paragraph 21 provides that all employees who are required as a result of organisational change to move by transfer or in competition to a post with another employment authority shall, in respect of all terms and conditions of service, be regarded as being in continuous employment for the purposes of the relevant statutory provisions.  The specific reference to these provisions tends, in the opinion of the tribunal, to suggest that it is highly improbable that continuity was intended to be generally preserved for all statutory entitlements, including the entitlement to claim unfair dismissal.  As on the facts of this matter the applicant was not required to move, but she did so voluntarily, her case falls outside these express exceptions as contained in the terms referred to above.  That fact was accepted by her own representative.

11.	The applicant’s representative did not try to adduce or to argue upon any evidence that there was, by implication, any implied term of the contractual arrangement to support the conclusion that statutory protection in respect of unfair dismissal was to be afforded by virtue of deemed continuity of employment.  He relied upon the constitution of express terms alone.  It was contended by him that the contractual arrangements with the Western Health & Social Services Board expressly, once properly construed, supported the conclusion that these terms had been freely and voluntarily afforded by the Board.  The tribunal was quite unable to take the view that this was the case, nor indeed did it find any implied terms which could be called upon to support the applicant’s contentions.  Furthermore, the applicant can seek no assistance deriving from evidence of the method of recruitment to the post.

12.	Accordingly, the tribunal finds that there is no evidence to support the applicant’s claim that her period of qualifying service relevant to the issue of disqualification from the right not to be unfairly dismissed, on account of the provisions of Article 140 of the Employment Rights (Northern Ireland) Order 1996 regarding a minimum period of continuous employment, extends to any date prior to 5th February 2001.  Accordingly the applicant is disqualified from the right to so claim, regarding a minimum period of continuous employment.

13.	The tribunal then dealt with an application for costs on the part of the respondent’s representative.  The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 1996 provide, at Schedule 1, Rule 12, that “where in the opinion of the tribunal, a party has in bringing or conducting the proceedings acted scandalously, frivolously, vexatiously, abusively, disruptively or otherwise unreasonably…”, the tribunal may make an award of costs against that party.  The respondent’s representative did not make out any argument save that the applicant had acted unreasonably in pursuing the case.  She brought into argument a previous decision of this industrial tribunal in the case of Richard Yates –v- Craigavon & Banbridge Community Health & Social Services Trust, case reference number 00360/99UD, which decision issued on 22nd March 2000.  She contended that the facts of that decided case were identical to the facts in this case and, accordingly, that the applicant ought not to have proceeded with this case and had therefore acted in a manner which was unreasonable.  Considering carefully and fully all the facts and the circumstances of the matter, the tribunal declines in this matter to make an award of costs.

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Date and place of hearing:  30 October 2001, Belfast

Date decision recorded in register and issued to parties: 28 January 2002