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Chambers & Partners
07/04/1998

British Broadcasting Corporation v Kelly-Phillips

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Court of Appeal

The appellant ('B') appealed against the decision of the employment appeal tribunal which upheld the preliminary decision of the Industrial Tribunal that it had jurisdiction to hear the complaint of unfair dismissal against B by the respondent ('K') because the term in her contract which purportedly waived the right to claim unfair dismissal was void. B submitted in the appeal that K's contract was for a "fixed term of one year or more" within the meaning of s.197(1) of the Employment Rights Act 1996 and that therefore the waiver clause was valid.
HELD: S.197(1) of the 1996 Act could not be construed on its own. S.95(1)(b) of the 1996 Act crucially recognised that a fixed term contract could be extended without a fresh contract by means of renewal. Therefore the reference in s.197(1) to a contract for a fixed term encompassed a contract which had been varied by an extension of the term under the same contract. Support for this construction came from s.197(5) of the 1996 Act which referred to "the term as renewed" and by observations made by the majority in the decision in BBC v Ioannou (1975) QB 781, by the approach of Sir Brian Hutton in Mulrine v University of Ulster (1993) IRLR 545 and from the decision in Bhatt v Chelsea and Westminster Health Care Trust (1997) IRLR 660. S.197(1) was satisfied when the original contract was for a fixed term of one year of more, notwithstanding that the employment was subsequently extended by agreed variation of that contract, even for a period of less than one year.
Appeal allowed.

[1998] IRLR 294

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