Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 2425/04

CLAIMANT: Kevin John McGovern

RESPONDENT: Homefirst Health & Social Services Trust

DECISION

The decision of the tribunal is that the claim of breach of contract is dismissed.

Constitution of Tribunal:

Chairman: Mr I Wimpress

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr Crothers of Brangam Bagnall & Co., Solicitors.

1. The tribunal heard evidence from the claimant on his own behalf and from Mr Alexander Lynch on behalf of the respondent. The tribunal also received a bundle of documents by agreement.
2. In his originating application dated 31 August 2004 the claimant advanced a claim for breach of contract in connection with an offer of employment made to him by the respondent in respect of the position of the Management of Violence and Aggression Against Staff Advisor (grade G nurse). The claimant contended that he had been offered and had accepted the aforementioned position. The respondent's case was that the offer of appointment to the claimant was conditional upon him attending and completing a specified training course and that as he had not been accepted on that course the offer of appointment was lawfully withdrawn. In these circumstances, the respondent submitted, there was no breach of contract. It was further submitted on behalf of the respondent that the tribunal had no jurisdiction to entertain a claim by virtue of Article 3(c) of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 as the claim neither arose nor was outstanding on the termination of the claimant's employment.
3. The issues for the tribunal to determine therefore were, whether the withdrawal of the offer of appointment gave rise to a breach of contract and if it did, whether or not the claim arises or was outstanding on the termination of the claimant's employment.
4. The tribunal finds the following facts.

The claimant had been employed by the respondent as a Deputy Manager at Hollybank Hostel, Magherafelt since 14 September 1998. In January 2004 the respondent advertised the post of the Management of Violence and Aggression Against Staff Advisor in local newspapers. The advertisement specified that it was essential that applicants had experience of working with individuals displaying violent behaviour and had previously completed a recognised course in the management of violence. The claimant was provided with a job description, which laid particular emphasis on the responsibility of the post holder for the provision of training to staff. The job description did not include any preconditions to the appointment other than a successful pre-employment health assessment.

5. A personnel specification for the post was also provided to the claimant which listed the essential criteria for the post which included at paragraph 4 under the heading of special circumstances the following statement:-

"Be prepared to undertake and complete a personal development programme and any training qualification deemed appropriate by management within an agreed time scale".

It was indicated that this information would be obtained at interview.

6. The claimant completed an application form for the post in which he set out his work history and qualifications and demonstrated how he met the essential criteria set out in the newspaper advertisement. The application form did not require the claimant to state how he fulfilled the criterion referred to in paragraph 4 of the personnel specification.
7. The appointment panel chaired by Mr Lynch held a short-listing meeting on 18 February 2004. The panel was satisfied that the claimant fulfilled the minimum short listing criteria and invited him to attend for interview. It transpired that the claimant was the only applicant for the post in question.
8. The interview took place on Friday 5 March 2004 and the panel comprised of Mr Lynch, Mr N Young and Mr T McCabe. A report was made by the panel at the conclusion of the interview which indicated that the appointment was to be offered to the claimant and contained under the heading of remarks the following comment in Mr Lynch's hand: -

"Post be offered to Mr McGovern on basis that he is accepted for, and completes Therapeutic Interventions [Reaside] Training Course and passes same".

All three panel members signed this document.

9. On Monday 8 March 2004, Mr Lynch informed the claimant that he had been successful at interview and that the post was being offered to him on the basis that he was accepted for and completed the Therapeutic Interventions [Reaside] Training Course and passed same. The claimant asked Mr Lynch what would happen if he didn't get on the course and Mr Lynch replied that there were other aspects to the post.
10. The claimant obtained an application form for the Reaside course and noted that in order to go on the course it was necessary to have a recognised teaching and assessment qualification. The claimant did not have a qualification of this nature. The claimant discussed the matter with Mr Lynch and a tutor in the Hollybank Hostel. On 23 March 2004 the claimant attended Mr Lynch's office in order to have his application form signed and receive authorisation for funding. There was no difficulty in this regard.
11. On 23 March 2004 the Reaside Clinic wrote to the claimant and invited him to attend for interview on 30 March 2004. The letter drew attention to the requirement for a teaching qualification.
12. The claimant attended for interview and on or about 2 April the claimant was notified by the Reaside Clinic that his application was unsuccessful. He was informed that due to the large number of applicants and the limited number of places available the Reaside Clinic had only granted applications from candidates with teaching and assessing qualifications.
13. The claimant spoke to Mr Lynch on 14 April 2004 and told him that he had been unsuccessful in obtaining a place on the course. Mr Lynch said that he would have to think about it and would get back to the claimant.
14. On the same day the claimant had a conversation with Mr J Wright of the respondent's Personnel Department. Mr Wright was not called to give evidence but a file note compiled by him was included in the bundle. It would appear that the claimant queried whether or not the offer of appointment could be withdrawn. It was also clear from the file note and a subsequent entry made by Mr Wright on 16 April that he entertained serious doubts as to whether the offer could be withdrawn. The claimant gave uncontested evidence that Mr Wright apologised for not writing to him about the post.
15. On 15 April 2004 Mr Wright wrote to the claimant informing him that he had been selected for appointment subject to a health check. The letter further stated that following successful completion of the health assessment, Mr Wright would contact the claimant to discuss his commencement date and a contract of employment would follow in due course.
16. On 5 May 2004 Mr Lynch discussed the matter with Nora McCabe in the Human Resources Department. He advised her that there was no option but to withdraw the offer made to the claimant because he had not managed to gain a place on the Reaside Course. On 2 June 2004 Ms McCabe wrote to the claimant and advised him that the respondent was withdrawing the conditional offer of appointment made to him. The claimant replied by letter of 8 June 2004 and asked why the respondent had failed to honour the offer of employment made to him and raising a number of other matters. Ms McCabe provided a substantive response by letter dated 2 July 2004.

The Parties' Contentions

17. The claimant's case was that he was offered the post by Mr Lynch on 8 March 2004 and that his actions in making arrangements to travel to England for interview and filling out a claim form, constituted an implied acceptance of that offer. Alternatively if the offer was conditional it was not necessary for him to complete the course in order to fulfil the condition but rather it was sufficient for him to indicate his readiness to undertake the course. The claimant maintained that he continued in his existing post because he would not have been in position to take up the new post for a period of months until he had completed his Social Work Diploma and therefore there was no need to resign from his post.
18. Mr Crothers on behalf of the respondent submitted that there was no evidence that a contract had been formed and the fact that the claimant attended an interview for the relevant training course did not constitute acceptance by him sufficient to form a contract. Mr Crothers further submitted that the contract was incapable of being fulfilled because of the inability of the claimant to complete the Reaside course. In addition, Mr Crothers submitted that even if there was a contract in law the tribunal had no jurisdiction as there was no evidence of termination either by resignation or cessation with or without notice to the respondent. He submitted that all that had occurred was that an offer had been made and subsequently withdrawn. It was also Mr Crothers submitted impossible to accept an offer of appointment that was conditional without fulfilling that condition. Finally, Mr Crothers submitted that even if the claimant could establish an actionable breach of contract he had not demonstrated any loss.

The Tribunal's Conclusions

19. It is clear that the claimant continued to work for the respondent under his subsisting contract throughout this period. Irrespective of any delay caused by the necessity for the claimant to complete his Social Work Diploma, the net result was that he did not resign from his existing post and no formal written contract was issued to him in respect of the new post.
20. It is not apparent how Mr Wright came to write to the claimant on 15 April 2004 and offer him the post. It was suggested on behalf of the respondent that it was simply an administrative error. Be that as it may the letter clearly did not convey the true intentions of the respondent. The health assessment referred to in the letter was not procured and a formal written contract was not issued. The next formal step in the process was Ms McCabe's letter of 2 June 2004 withdrawing the offer of appointment. More significantly, the claimant did not place any great reliance on Mr Wright's letter preferring instead to focus on Mr Lynch's initial offer and his implied acceptance of same. This is not surprising given that it was the claimant's case that he accepted the offer prior to receiving Mr Wright's letter.
21. Article 3(c) of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 provides as follows:

"Proceedings may be brought before an industrial tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for sum due in respect of personal injuries) if –

(c) the claim arises or is outstanding on the termination of the employee's employment."

22. Therefore, an industrial tribunal only has jurisdiction to hear claims for breach of contract where the claim arises or is outstanding on the termination of the claimant's employment. It is accordingly a prerequisite that the relevant employment has been terminated (see Capek v Lincolnshire County Council [2000] ICR 878). The claimant sought to place reliance on Sarker -v- South Tees Acute Hospitals NHS Trust. [1997] ICR 673 in which it was held that termination can take place before a prospective employee takes up employment. However, in that case the employee in question had resigned from her previous post on the basis of being provided with a written contract that she had accepted and into which the respondent subsequently sought to import a fresh condition. In the present case the claimant neither resigned nor received a written contract. This presents a fundamental difficulty for the claimant.
23. It could not be plausibly contended that the appointment process in the present case was handled skilfully. It is remarkable that there was no mention of the Reaside course in the newspaper advertisement, the job description or the personnel specification. The requirement to have this qualification was not discussed by the panel prior to the interview nor with the claimant during the course of the interview. It only became apparent to the interview panel that the claimant did not have this qualification when they sat down to consider the information provided by him post interview. In these circumstances it was singularly unfortunate that the respondent failed to provide the claimant with written notification of this pre-condition either before or after the interview. However, I am not satisfied that a new contract of employment was entered into between the parties or that the existing contract of employment between the parties was terminated. The evidence demonstrates clearly that the offer was ultimately unequivocally withdrawn by the respondent and the claimant remained within the employment of the respondent throughout the relevant period pursuant to his existing written contract of employment. While it may be custom and practice for a written contract to follow sometime after a binding contract has been entered into between the parties it is impossible in the context of the present case to regard the existing contract as having been superseded given that the claimant continued to be employed by the respondent under his existing contract. Clearly the claimant could not be the beneficiary of two contracts of full-time employment simultaneously. There can only be one relevant contract of employment for the purposes of a breach of contract claim. It is impossible for the claimant to succeed in a breach of contract claim of this nature while still employed by the respondent under his existing contract of employment. The claim for breach of contract must therefore be dismissed.

Chairman:

Date and place of hearing: 18 August 2005, Belfast.

Date decision recorded in register and issued to parties: