UT/2023/000049 - [2024] UKUT 00233 (TCC)

We do not agree with Mr Firth’s arguments, and we are clear that the FTT reached the right decision on the meaning of “regularly attends”.

The starting point is that, as with any statutory language, section 339(2) must be construed purposively, by reference to the words chosen by Parliament, and in context. Mr Firth’s submissions focus on the words “regularly attends” in isolation, but the wording which requires construction is “regularly attends in the performance of the duties of the employment”. It is critical to consider the wording in its entirety, and in context, because the words “regularly attends” looked at in isolation inevitably beg the question: regularly attends for what purpose?

In section 339(2), we are told by the drafter that the regular attendance must be “in the performance of the duties of the employment”. Here, in light of our dismissal of Grounds 1 and 2, “the employment” is that arising under the separate contract of service for a particular assignment. That assignment might last hours, days, weeks or months. Therefore, it follows that the FTT was correct to construe the language as referring to attendance at a workplace “every day during which the employment subsists”, even if that is only for one day. We accept that for a one-day assignment, “regular” is not the most obvious choice of word, but in that context it simply means regular attendance during that day in the performance of the employment duties.

Mr Firth’s interpretation seeks to measure and define “regularly attends” by reference either to the length of time of an assignment and/or the number of days of attendance. There is no warrant in the language (construed in its entirety) for such an approach. The measurement and definition of regular attendance in section 339(2) is by reference to the duties of the employment in question. It is entirely sensible that what it requires therefore varies with the length of that employment and the attendance necessary and is sufficiently flexible to accommodate any assignment giving rise to a contract of service.

The FTT’s interpretation, which we consider to be entirely consistent with the language in section 339(2) looked at in its entirety, avoids the anomalies and uncertainties generated by Mr Firth’s interpretation.

For our part, we do not find the discussion in Isle of Wight Council v Platt to offer any great assistance in interpreting section 339(2), since it concerns the phrase “regular attendance” in the context of completely different legislation. In any event, if one accepts Mr Firth’s suggestion that that discussion supports the interpretation of the wording in this case as meaning “sufficiently often”, that is consistent with the interpretation of the FTT: attendance is regular if it is attendance which occurs sufficiently often to perform the duties of the particular employment.

Mr Firth’s assertion that the FTT considered “regularly attends” to mean “attendance when required to do so” is not made out. The FTT refers to that formulation of “regularly attends” only at FTT[166] and only for the purpose of addressing an argument of Mr Firth regarding attendance on an assignment of a single day.

Our conclusion as to the meaning of “regularly attends” means that the appeal under Ground 3 fails. It is not necessary for us to determine the question of whether section 339 contemplates that a third category of workplace may exist which is neither temporary nor permanent as defined, and we express no view on that question.

The appeal under Ground 3 is dismissed.