United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 67_95_0203

Appeal No. EAT/67/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 2 March 1995

Before

THE HONOURABLE MR JUSTICE BUCKLEY

MRS M L BOYLE

MR K M YOUNG CBE

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MR J C PEARSON          APPELLANT

TAMESIDE METROPOLITAN BOROUGH COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant IN PERSON


 


MR JUSTICE BUCKLEY: This is an appeal from an Industrial Tribunal sitting at Manchester on 26 August 1994 as to whether Mr Pearson was contractually bound to accept the terms of a local agreement.

Paragraph twelve of the reasons identifies the point in a nutshell. His contract would have incorporated national agreements. It seems to have been accepted by the Tribunal that this was not an agreement that his contract expressly incorporated but they have sought to hold Mr Pearson to it (an agreement with which he did not specifically agree and did not accept), on the basis of custom and practise.

Well there is no evidence and no findings of fact in the reasons to justify a legal custom or practice to incorporate such a term. Rather, what we think the Tribunal had or should have had in mind was whether the behaviour of Mr Pearson in the past when on many occasions he had not objected to local agreements being adopted in the contract, whether that conduct amounted to a sufficiently clear representation to the Respondents that he would do that in the future and whether the parties had proceeded to operate the contract on that basis.

Now, if the facts supported that, it might give rise to a contractual variation or at least an estoppel to prevent Mr Pearson going back on that when in an individual case it did not suit him, but it does not seem to be the way the Tribunal approached it on this occasion and to our way of thinking the factual enquiry perhaps did not cover that so we do think there is something to be looked at here and it should go forward to a full hearing.

Mr Pearson, it goes without saying that you should not take much encouragement from our reaction today. All we are doing is looking to see without hearing the other side even, whether there is a point that is sensibly arguable to go to a full hearing. We have found that there is for the short reasons that I have given.

But if we had heard the other side or when the other side turn up to full hearing they may very well persuade the Tribunal that all is well after all. So you must understand, we are doing no more than saying that there is enough here for a Tribunal to look at on a full hearing. Right well, thank you very much.