United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 888_95_1711

Appeal No. EAT/888/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17 November 1995

HIS HONOUR JUDGE H J BYRT QC

MISS J W COLLERSON

MR E HAMMOND OBE

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MR M RAMM          APPELLANT

(1) UNIVERSITY OF SURREY
(2) UNIVERSITY OF SURREY STUDENTS UNION
(3) UNIVERSITY OF SURREY STUDENTS UNION CLUB          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR K BRYANT

(Of Counsel)

Messrs Stevens and Bolton

5 Castle Street

Farnham

Surrey

GU9 7HT

For the 1st Respondent MR M DAVEY

(Of Counsel)

Messrs Barlow

Solicitors

Elliott House

Gogmore Lane

Chertsey

Surrey KT16 9AF

For the 2nd and 3rd Respondents MR M BRETT

(Of Counsel)

Messrs Owen White and Catlin

56 High Street

Shepperton

Middlesex TW17 9AY


 


JUDGE BYRT QC: This is an appeal from the decision of the Chairman, sitting on his own, of the Croydon Industrial Tribunal. At a Preliminary Hearing, he dismissed from these proceedings the First and Second Respondents who in law, seemed inappropriate parties. The Appellant complained that they have been wrongly dismissed. In his Originating Application, he named the First Respondent as his employer, with the same address as that of the Third Respondent. By the First Respondent's Notice of Appearance, the University alleged that they had employed the Applicant between 1979 and 1985. They went on to allege that he was next employed by the Second Respondent until 1987 and at the material time, namely in August 1994 when he was dismissed, that he was employed by the Third Respondents. As a result of that, the Appellant added the Second and Third Respondents to these proceedings. At the Interlocutory Hearing before the Chairman, he considered whether the First and Second Respondents had anything to do with the Applicant's employment in August 1994 and if not, whether they should be dismissed from these proceedings.

The starting point in the argument must, in our view, be as to whether the Respondents each had a separate legal identity. The Chairman was so satisfied. The Appellant has now conceded that the First and Second Respondents had a separate identity but he has challenged the position of the Third Respondent. We are satisfied, having regard to the evidence which was before the Chairman, that there was an abundance of evidence that each of the three Respondents had a separate legal identity and indeed that each of them were engaged in commercial transactions of all kinds. There was evidence before the Chairman of the VAT registration of the Third Respondent, their separate bank accounts, and the fact that they had been signatory to an occupancy agreement, relating to the premises in which the Club was housed.

On that aspect of the case we are satisfied that the Chairman came to the right conclusion and uphold his decision in that respect. We also hold that, by reason of the fact that each of them have separate legal identities, empowered to engage in commercial transactions of all sorts, they would equally have been empowered to employ. The only question we have to consider is who was employing the Applicant in August 1994.

The Chairman found that the First Respondent had employed the Applicant until 19 July 1985. On that date there was a contractual offer made by the Second Respondents to employ the Applicant. The document in which that offer was made, was counter-signed by the Applicant, indicating that he accepted the terms of the employment which was included in that letter. On the face of it therefore, it seems clear that the Second Respondents had offered the Appellant employment and that he had signified his acceptance of it. The argument, advanced before us, as indeed it was before the Chairman, was that the letter containing the offer contained an ambiguity which could only be clarified by oral evidence from the Appellant himself. The ambiguity, relied upon, is in the second paragraph of the letter where it states in two sentences something which seems to be contradictory. It begins:

"... there is no period of employment with a previous employer which will rank as part of your service with the students union. I confirm that your continuity of service counts from 9 July 1979, your date of appointment with the university".

Mr Davey, who has argued on behalf of the First Respondent, says two things; first, that in actual fact the second sentence is a "term-of-art" in effect, which, in itself, is evidence that it was intended that there should be a change of employment at that particular point in time. Secondly, he says that if there is an ambiguity, it would only have significance if it was suggested that the University (the First Respondents) still remained the employers of the Appellant. He says that would be totally incompatible with the text and the purpose of the whole of the letter. He says for that reason, although there may be an inconsistency between the first and second sentence of that paragraph, it is an ambiguity without any significance and does not distort the effect of the letter as a whole, which was to offer employment to the Applicant.

We accept the findings of the Chairman in respect of this. He found that it was the offer of employment made by the Union, the Second Respondents which was accepted, and that as from July 1985 the Appellant became their employee.

The next significant event is that, as the Respondents, and in particular the Third Respondents, say, the Appellant became the latter's employee in May 1987. In support of that contention they refer to two letters dated 27 May 1987. The first letter was from the Second Respondents to the Appellant in which they told him that his employment with them was ceasing. It was being transferred to the Third Respondents. It is plain there was a very close association between all these three Respondents. One can understand how that happens in a situation like a University. The first of the letters from the Union to the Appellant, was cast in terms which in effect told the Appellant, his employment had been transferred. That was taken up by the second letter of that date in which the Third Respondents wrote to the Appellant and told him that his employment was being transferred and that all his conditions of employment would remain unchanged. That, doubtless, was a letter the purpose of which was to assuage any anxieties the Appellant might have, but in fact the Appellant, in argument before us, has relied upon it as revealing a further ambiguity in the terms of this offer. The terms and conditions of his employment relates back to what was set out in the letter of July 1985 when the Second Respondents became the Appellant's employer, and that in turn incorporated the terms and conditions which had applied when the Appellant had been employed by the University. When one looks at the details of the terms and conditions, and in particular the grievance procedures, one sees that they are appropriate for an employee of the University, and quite unsuitable for an employee of the Club. They referred to the Appeal Committee to which an aggrieved appellant could appeal, as being made up of University nominees rather than that of the Union or indeed of the Club, the Third Respondents.

The question is to whether that would have let in oral evidence, of the sort that the Appellant wished to adduce before the Chairman. One has to look at the overall picture presented by these two letters. A significant feature was that, unlike on the earlier occasion, the Appellant had signed no particular document indicating he had accepted his transfer of employment. An indication that he had, was the fact, as the Chairman observed, that the Appellant had not objected in any way to the transfer. In fact, the Appellant appears to have taken up his employment and remained so employed until it was terminated in August 1994. One asks what oral evidence the Appellant might have given which would have been admissible in law? As in the earlier contract with the Second Respondents, one asks whether the Respondent would have wished to set up some sort of collateral agreement which might alter, vary, set aside or take the place of what, on the fact of it, looks like a concluded contract of employment with the Third Respondent. That is not suggested. It is not the Appellant's case.

In all the circumstances, we are satisfied that, on a proper construction of the relevant documents, it is plain that the Appellant was successively employed first by the First, then the Second Respondents, and then by the Third Respondents. The contrary is, in our view, unarguable. These are the conclusions the Chairman came to. Having reviewed this matter with considerable care, we are satisfied he came to the right conclusions on the law and on the facts put before him when he dismissed the First and Second Respondents from these proceedings. Accordingly this appeal will be dismissed.