England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge Pugsley, Mr K. Edmondson JP and Sir Alistair Graham KBE
Appeal No: UKEAT/0232/10/CEA, BAILII: [2010] UKEAT 0232_10_2906

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/03/2012

Lord Justice Rimer :

1. This is a renewed application for permission to appeal. Elias LJ refused permission on the papers on 10 October 2011 on the grounds that, in his judgment, an appeal would have no prospect of success. The applicant is Muhammad Tasneem, the respondent is the Dudley Group of Hospitals NHS Trust ('the Trust'). The proposed appeal is against an order of the Employment Appeal Tribunal (His Honour Judge Pugsley, Mr K. Edmondson JP and Sir Alistair Graham KBE) of 29 June 2011 dismissing the applicant's appeal against a unanimous judgment of the Birmingham Employment Tribunal (Employment Judge van Gelder, Mr J. Brown and Mr J.M. Gardner) sent to the parties, with reasons, on 9 March 2009. That judgment dismissed the applicant's claims for breach of contract, less favourable treatment on grounds of fixed-term status, race discrimination, age discrimination and unfair dismissal.
2. The applicant was represented by the same counsel both before the ET, where the hearing lasted some eight days in 2008, and before the EAT. Counsel also drafted the lengthy skeleton argument in support of the proposed appeal to this court. I was expecting him to appear before me on the application, although he did not. The applicant appeared in person and told me that counsel was engaged in another court. I asked him whether he wanted to apply for an adjournment and he made it clear he did not. He had obviously come prepared to address the court himself and helpfully made it clear at the outset that of the eight grounds of appeal developed in the skeleton argument, he wished only to press the giving of permission on grounds 2 to 6. These grounds are all based on or related to the contract claims.
3. The applicant is of Asian ethnic origin and was employed by the Trust on a series of fixed-term contracts as a locum consultant orthopaedic surgeon. His first contract was a six-month one from 1 September 2003 and he signed it on 30 September 2003. His employment with the Trust terminated on 30 April 2007. The contract claim was based on the fact that in 2003, and following extensive and widely publicised negotiations between the Department of Health, the BMA and the NHS Confederation, a proposed new contract for consultants was agreed, subject to approval by ballot by the BMA. I quote now from the ET's reasons:

'3.3 … On 11 September 2003 the Director of Human Resources wrote to all NHS Chief Executives, Medical Directors and HR Directors .... The letter confirmed that the parties to the negotiation had agreed the final negotiation including the consultant's contract and the terms and conditions of service which would be the subject of the ballot. The letter goes on to set out a timetable subject to the outcome of the ballot in the form of a series of steps: firstly, "NHS employing organisations give all existing consultants the opportunity of indicating by 31 October whether they wish to give a formal commitment to the new contract. This will affect the position on back dating of pay increases …." There was then a commitment to allow 3 months' negotiation for the parties to agree individual job plans and where a new post is being offered from 31 October onwards the post would be offered on the terms of the new contract. The two key areas of action for Trusts were identified as "First, Trusts will need to ensure that consultants have the opportunity to give a formal commitment by 31 October based on an informed understanding of the new contract and what it is likely to mean locally. Second, Trusts will need to prepare for the subsequent job planning process.'

4. The applicant's case was that this letter amounted to a contractual term binding the Trust to notify him of his right to transfer to the new contract terms. The breach alleged was that the Trust failed to inform him of the new consultant contract. On 24 October 2003 the Trust sent letters by email to 'To All [Trust Consultants] …' although the recipients did not include the applicant as he was not connected to the Trust's email system until May 2004. The ET explained that:

'3.6 The letter confirms the outcome of the ballot in favour of adopting the contract [which was on 20 October 2003] and also confirms the heads of agreement previously reached between the negotiating parties for all consultants to be given the opportunity to commit to the new contract by 31 October. The letter makes it explicit that commitment by that date and agreement of a job plan within the 3 month period provided for would result in any pay increase being backdated to 1 April 2003. A commitment between 1 November 2003 and 31 March 2004 would limit the pay increase being backdated 3 months prior to the date of the commitment. A commitment on or after 1 April 2004 would preclude backdating. The letter also sets out advantages that would be likely to accrue if a transfer to the new contract was undertaken. The letter concluded with the request that Ms Clarke be notified of the consultant's intentions by 31 October 2003 including the intention not to take up the offer. There was no attempt made to monitor the extent to which the responses were made.'

5. Follow up letters were sent in December 2003, February 2004 and May 2004 to consultants who indicated a wish to transfer to the new contract. The Trust's evidence was that there was no intention of excluding any consultants from the information so emailed and the ET found that there was no evidence suggesting otherwise. Moreover, although the applicant was not on the email list, he knew that the new contract was coming into effect, he discussed it with colleagues and learnt that locums would not be able to take advantage of the new contract until the substantive consultants had decided what to do. He then took the matter up with the BMA, which, contrary to that advice, confirmed that locums were entitled to the benefit of the new contract. He was advised to speak to his local representative but he did not do so, nor did he take up any of the avenues open to him with the Trust. The ET found that:

'3.10 … [The applicant] was nevertheless in a position to apply the knowledge which he had about the negotiations and the existence of the new contract to pursue the matter directly with [the Trust]. He failed to do so. In his evidence … [he] asserted that he had not had the courage to ask. That suggestion is contradicted by the fact that [he] was quite happy to raise issues about other terms of his employment e.g. relocation expenses which he raised in December 2003 in writing following a number of telephone conversations.'

6. In the course of his employment with the Trust, the applicant entered into eight fixed-term contracts. Save for variations in their length, they were in identical terms. He accepted in his evidence that all the renewals were extensions of his original contract, for continuations of his existing post. On 16 March 2006, however, he did apply to Ms Clarke for a transfer to the new form of contract, the catalyst for that being that other locums had told him that they were working under the new form of contract. The ET explained in paragraphs 3.17 to 3.20 the negotiations in relation to that and how, by the time of the conclusion of his employment, the applicant had not concluded negotiations acceptable to him for transferring to the new contract.
7. The breach of contract claim was (i) that the letter of 11 September 2003 referred to in [3] above imposed a contractual obligation upon the Trust to notify the applicant of his right to transfer to the new contract terms, and (ii) that the Trust breached that obligation by not so notifying him. The proposition that the letter had such a contractual effect is one that I regard as startling. The ET rejected the suggestion fairly summarily for short reasons given in paragraph 6.2 and, in consequence, it also rejected the case that the Trust was in breach of contract in not informing the applicant of the new consultant contract. It further, in paragraph 6.4, also rejected the applicant's case that the Trust had in some manner been in breach of contract in failing to implement the applicant's request in March 2006 to be transferred to the new form of contract. The ET dealt also with the applicant's case that, on each occasion when he renewed his fixed-term contract with the Trust, the Trust wrongfully failed to offer him a contract in the form of the new contract. As the ET had already rejected the case that the Trust had come under any relevant contractual obligation by virtue of the terms of the letter of 11 September 2003, it necessarily followed that it also rejected that case.
8. In paragraph 6.7 the ET rejected the case that the Trust's failure either to inform the applicant of the opportunity to take up the new form of contract, or to offer him the opportunity of such a new contract on the occasion of each contract renewal, was less favourable treatment on the ground that he was employed on a fixed-term contract. It found as a fact that it was not so grounded.
9. The EAT's judgment reflects that it had great difficulty in understanding the applicant's case. It observed in paragraph 2 that counsel's argument had not identified any issue of law but had attempted merely to re-argue the facts that the ET had decided. In referring to the breach of contract ground of appeal, it described itself as mystified by it. The EAT noted in paragraph 16 that the applicant knew all about the terms of the new contract from his colleagues, he had the means to find out more and he consulted a BMA adviser about it. The EAT noted in paragraph 17 that:

'Although he was in direct contact with the appropriate representative of [the Trust] on issues concerning his contract [the applicant] elected for reasons unconnected with any failing on the part of [the Trust] not to pursue his application to transfer to the new contract until 2006.'

10. Given his knowledge of his rights, and his own choice to do nothing about exercising them, the EAT regarded the breach of contract claim as academic. That was because, I understand, since the applicant knew perfectly well what his rights were in relation to the new contract, any loss he suffered by not signing up to it flowed from his own decision not to do so. The EAT nevertheless concluded that the ET could not be said to have been in error in concluding that the letter of 11 September 2003 was not intended to impose a contractual obligation upon the Trust. It would, said the EAT, 'be a somewhat surprising position if every missive from Whitehall about the implementation of staffing changes were to be incorporated into an individual contract of employment'. The EAT also said:

'22. The subsidiary grounds of appeal under this head are in our view simply unarguable. The contention that [the applicant] accepted the terms of [the Trust] in respect of the new contract and [the Trust] breached those terms is not sustained on the basis of the Tribunal's findings. The Tribunal decision chronicles the negotiations surrounding the new contract in paragraph 3.14 through to 3.19. In brief [the applicant] was sent a revised offer of [the Trust's] terms and conditions and was asked to sign it and return it. He failed to do so. No contract was agreed. The Tribunal was quite correct to conclude that [he] had not been transferred to the new contract. [He] had not given his assent to his terms of the offer.

23. [The applicant's] contention that he should have been offered a new contract on each occasion that his locum contract was renewed as he was being offered a new post is based on there being a contractual duty imposed by the letter of 11 September 2003. In any event as the Tribunal found at paragraph 6.5 on its true analysis all that was happening was that an existing contract was being renewed.'

11. In paragraph 24, the EAT then summarised the ET's findings to the effect that the failure to notify the applicant of the new contract opportunity was not part of a policy to exclude locums from such information and that the issues concerning seniority and back pay were not due to any discriminatory policy. The EAT could find no error of law in these respects.
12. The grounds of the proposed appeal to the Court of Appeal seek to re-open the argument that the effect of the letter of 11 September 2003 was, in some manner that I find obscure, such as to result in the Trust coming under a binding contractual obligation to notify the applicant of the opportunity to transfer to the new contract. In my judgment the argument is wrong and discloses no arguable error of law on the part of the ET in concluding otherwise. Elias LJ, on the papers, said that he agreed with the EAT that the applicant's contract claim was hopeless. I also agree.
13. Ground 2 of the proposed appeal is based on the consequential assertion that the Trust's failure to transfer the applicant on to the terms of the new contract 'by 16 September 2006 or soon thereafter' the Trust was in breach of contract. That argument has no prospect of success. The ET found that, whilst the applicant had sought an appointment on the new terms, no agreement as to the terms was reached with the Trust. There is no basis for any challenge to that finding.
14. Ground 3, as explained in the skeleton argument, is one that I have great difficulty in understanding. Its thrust appears to be that, on each occasion that the applicant renewed his fixed-term contract, the Trust was contractually obliged to offer him a contract on the new terms and that its failure to do so was a breach of contract. That meant that the applicant suffered financially by renewing his fixed term contracts on the same terms as their predecessors. The ET's finding was, however, that the Trust was under no such contractual obligation as is here asserted. There is no real prospect of showing any error of law by the ET in this respect, and so this ground of appeal also has no prospect of success.
15. Ground 4 asserts that the Trust discriminated against the applicant by failing to renew his employment on the terms of the new contract. The ET dealt properly with this assertion and found on the facts that there was no question of any discriminatory treatment of the applicant. I cannot see that the applicant has any real prospect on an appeal of showing otherwise. The EAT found no error of law in the ET's approach to this issue, nor can I.
16. Ground 5 is yet more of the same, being essentially based on the assertion that the Trust was or had become obliged to transfer the applicant to the new contract. Ground 6 is described in the grounds of appeal as 'not renewed in the Court of Appeal' although it forms part of counsel's skeleton argument and its premise is that the Trust was in continuous breach of its obligations to transfer the applicant on to the terms of the new contract. That ground has no better prospects than the others.
17. In his careful and courteous address the applicant confined himself to the explanation of his case under grounds 2 to 6. He emphasised that he was never notified by the Trust of the right to apply for a contract upon the new terms. He emphasised that, each time his fixed-term contract was renewed, it ought to have been renewed on the same basis as the terms of the new contract. He claims to have suffered a loss of approximately £100,000 in consequence of the Trust's dealings with him, although I should note that in paragraph 4 the ET recorded the applicant's acceptance that the ceiling of his breach of contract claim in the ET was £25,000. He plainly feels very hard done by and considers that the Trust treated him unfairly. Nobody likes to lose a case and he clearly considers that he ought to have succeeded. The problem with his address was, however, that it at no point met and adequately answered the point that the ET's finding was that the Trust never assumed the contractual obligations upon which grounds 2 to 6 are founded; and that, even when in 2006 he did seek a transfer to a contract on the new terms, he and the Trust never reached final agreement upon it. Nor did it meet the difficulty that the ET's decision on the alleged discriminatory treatment of the applicant was a legitimate conclusion on the facts, in arriving at which the ET made no error of law. In my judgment, and in agreement with Elias LJ, an appeal on grounds 2 to 6 would have no prospect of success.
18. I have therefore come to the conclusion that this application for permission to appeal must be refused.