United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R C PUNTIS (Father)
For the Respondent	MR R KANE Principal Employee Relations Adviser


 


JUDGE H J BYRT QC: This is an appeal against the decision of the Industrial Tribunal sitting at Southampton on 4 May 1995 when they dismissed the Applicant's (now the Appellant) application for a declaration under section 11(2) of the Employment Protection (Consolidation) Act 1978 that the governing body of the Respondent school had failed to serve upon the Appellant a correct statement of the main terms and conditions of her employment.

Before I deal with that criticism I will set out the background facts of this case. The Appellant took an appointment with the Respondent school in October 1990. In September 1991 she took on extra pastoral and organizational responsibilities, principally acting as the Year 4 Co-ordinator. As a result, on 19 November the school governors had a meeting and agreed that she should be given a temporary grade A allowance for the work she was doing. This amounts to something of a promotion. The allowance was paid to her from 1 November.

The Appellant was duly informed by Mr Levett, the head teacher, in the staff room when she was talking to some students, that the governors had approved an A grade allowance. In due course, the area education officer was informed and they wrote on 10 December 1991 and I quote:

"To confirm the arrangements for you to receive a temporary rate 'A' allowance ... to 31 August  1992."

Upon receipt of that letter, the Appellant expressed her disappointment to the head teacher, Mr Levett, saying that until then she had not been told that the promotion was only temporary. Apparently, Mr Levett apologised to her and explained the school policy that all grade A allowance teachers were only on temporary contracts.

That was a promotion until 31 August 1992. In July 1992, there was an extension of her promotion until January 1993. She was again written to by the area education officer, who told her that on 1 January she would revert to her substantive standard scale post. There were further extensions on 5 January and 6 April 1993 and the latter extension took her through to a termination date, 31 August 1993. Again, the area education officer explained that these promotions were only of a temporary nature. In the summer of 1993, Mr Lodge the Deputy Head Teacher was engaged in a process, extending over a four-month period, of appraisal of the Appellant's performance and in the course of that appraisal he had occasion on 12 May 1993 to have a meeting with the Appellant in the school conference room. On that occasion he said:

"Have no fears Sue, your 'A' allowance will be made permanent."

and it is said that he said this three or four times during the course of the meeting. It is perhaps of some significance that, before the Industrial Tribunal, Mr Lodge denied that he had made such a statement and they chose to accept the evidence of the Appellant about that.

In mid-July the Appellant then sought confirmation from Mr Levett that she had, in fact, been promoted on a permanent basis. Mr Levett declined to give any such assurances and told her that in future the A posts "would be up for grabs". The same day the Appellant had a conversation with Mr Lodge in which she sought to remind him about what he had said previously about her A allowance being made permanent and he ended up by saying:

"I am sorry Sue, that's what I thought at the time."

The Appellant then complained to the school governors and to the head teacher to no avail. 31 August 1993 came and went, and accordingly her promotion came to an end.

In October she had to apply for a permanent promotion to the A allowance because there were two vacancies occurring but there were three candidates. She applied for one of the positions but, unhappily, was unsuccessful. Ever since the Appellant has remained a basic grade teacher.

At the hearing before the Industrial Tribunal, it was agreed between the parties that the substance of the case centred on two instances: the meeting in November 1991 when Mr Levett in the staff room told her the governing body had agreed to pay her her A allowance, and the instance in the appraisal discussion with Mr Lodge on 12 May 1993 when he said:

"Have no fears Sue, your 'A' allowance will be made permanent."

It was agreed that the substance of the case turned on whether what was said in either conversation was sufficient to establish a binding contract.

The Industrial Tribunal reminded itself that under s.11(2) of the Employment Protection (Consolidation) Act 1978 their powers were limited to determining whether the statement served under s.1 of the Act was an accurate and correct record of the terms of employment, and further that their powers were limited to a declaration to that effect. The Tribunal, having heard argument between the parties, declined to make a declaration that her statement should show she was entitled to a permanent Grade A allowance and made certain specific findings: (1) that the conversations between the Appellant and Mr Levett and the Appellant and Mr Lodge on 12 May 1993 contained no contractual commitment. In coming to that finding they directed themselves that there must, before a contract can be created, be an intention to create a contractual commitment. It held that there was no such intention in this case. (2) It further directed itself that before they could find a contract they had to be satisfied that consideration moved from the promisee, that is the Appellant. Again, it found that there was no consideration and, accordingly, no contract. Further, they said that if they were wrong about that and there was, indeed, a contract, then they found as a fact that Mr Lodge had no authority to make a contract which would bind the school governors and, accordingly, if Mr Lodge had purported to make a contract, it would be unenforceable.

They referred to the fact that between November 1991 and 12 May 1993 the Appellant seemed to accept that her promotion was temporary only and that, in between those dates, she had on several occasions pressed Mr Levett as to whether her promotion would be made permanent, and asked themselves whether her repeated expressions of concern were symptomatic of an anxiety whether she would get that promotion. Equally, were Mr Levett's answers and those of Mr Lodge, in the nature of a reassurance?

Before we consider the precise terms of the conversation of 12 May 1993, it is right to say that the matter came before this Tribunal on a preliminary hearing in January 1996 and that the Tribunal gave leave for it to go forward for argument on one point only, namely, the implications of the conversation on 12 May 1993 and not on the earlier occasion of November 1991. That has been the sole issue before us today.

What arose out of the discussions that took place between the deputy teacher, Mr Lodge and the Appellant on that occasion?

It has become plain during the course of the argument before us that Ms Puntis, whose case has been cogently and, if I may say, courteously and persistently argued by her father on her behalf, has a strong genuine sense of grievance. Ms Puntis was a hard-working and conscientious teacher who was led to believe over a period of some 22 months that she had prospects of promotion. It is part of the findings of the Industrial Tribunal that there were repeated assurances that, though on a temporary promotion only, she could look forward to that allowance being made permanent.

Unfortunately, in September 1993, whilst she was competing for the two places for an A allowance promotion, she learned that one of the two Applicants, had erroneously been promised permanent promotion in January 1993. This was elicited in evidence during the course of the hearing before the Industrial Tribunal. The matter was raised with Mr Levett during the course of his evidence and he explained that "the appointment" had been erroneous. He blamed his secretary for making a mistake about the letters sent out to this other employee, a Mr Parnell. The Appellant has taken trouble prior to the hearing before us to secure a statement in the form of a letter from the secretary in question, a Miss Janet French, dated 30 January 1996. In it, she makes plain that there was no letter sent out on behalf of Mr Levett that he had not read through and checked and signed himself and, accordingly, if there were any mistake it would not be hers but it would be that of Mr Levett. In consequence, the Appellant, understandably we think, entertained a considerable suspicion that when she applied for her job in the September in competition with the two others, the one other being Mr Parnell, she was not competing on a level playing field and that the school had taken the opportunity to regularise his irregular appointment, made the previous January. The Appellant did not get the appointment, Mr Parnell was confirmed in his permanent appointment and the other candidate, another woman, succeeded in place of the Appellant.

The Appellant is further aggrieved. She says that, if the school governors were prepared to correct an error in correspondence which led to Mr Parnell's "appointment" in the January of 1993, why, when there is a further misunderstanding about what Mr Lodge told her on 12 May 1993 did not the governors show her the same indulgence and feel a moral obligation to promote her to the other A level position permanently?

This is the grievance which, we think, burns deep in the Appellant and is the basis of a substantial amount of her father's submissions before us today. Having said that, however, we have to stress that it is not for us to enquire whether there has been discrimination or whether the Appellant has been picked on unfairly. The sole issue before us is whether there was a contract arising out of the discussions between Mr Lodge and the Appellant on 12 May 1993. That is essentially a legal point, a point of law as to whether on the facts found by the Industrial Tribunal, there has been a contract or not.

The first point to observe is that there is no note of any acceptance by the Appellant herself in response to Mr Lodge's statements. There is no suggestion in the IT1 itself to the fact that she made any statement which could be of a contractual nature. Furthermore, there is no reference in that document to what the consideration is supposed to have been. Further, there is no suggestion that prior to the statement of Mr Lodge there had been any negotiation or discussion about the basis upon which she would accept a permanent appointment. In fact, it would seem that the discussion on 12 May bore none of the features one would expect where there is a contractual agreement agreed between the parties.

The highest the matter can be put in the Appellant's favour, is that Mr Lodge made a promise as to a future intent and, when one interprets his remarks in that way, one can see there are problems for the Appellant's case. It is notoriously difficult to prove a statement relating to a future intent as the basis of a contract. The future is shrouded in uncertainty for all of us and uncertainty eats away at the basis of any alleged contract. There are circumstances where a naked promise made by one party to another can be the basis of a contractual commitment where the promise is relied upon by the person to whom the promise is made and, as a result, that person then acts to his/her disadvantage. Where that happens the person who has made the promise, is estopped from disputing the contractual consequences.

However, in this particular case, whilst it might be said that the Appellant relied upon what Mr Lodge told her, there was no evidence before the Industrial Tribunal, no finding by the Industrial Tribunal, and no assertion made in the submissions before us, that the Appellant had acted to her disadvantage as the result of what Mr Lodge said. It is difficult to see how such a claim could be made because, before her temporary appointment ended on 31 August, anything Mr Lodge might have promised on 12 May was revoked or corrected by Mr Levett in discussions with the Appellant in the July. The same comment applies to his period following 31 August.

The next issue to which the Tribunal directed itself was whether there was an intention to create a contractual relationship between the parties at all. The Industrial Tribunal came firmly to the conclusion that there was no such intention. One is left to assume that they envisaged the statements made by Mr Lodge on 12 May to be mere assurances given to the Appellant in the face of her continued anxiety and concern about her future career prospects, an assurance of the same sort that had been given to her in the period between 1991 and 1993. What, if any, is the difference between the assurances she was given on 12 May and on earlier occasions?

In all the circumstances, having listened carefully to everything said by Mr Puntis on behalf of his daughter, we cannot see that the Industrial Tribunal erred in any way in coming to the conclusion that they did.

There was, however, a fall-back position which Mr Kane, on behalf of the Respondent, has argued here as, indeed, he argued it in front of the Industrial Tribunal. Assuming that the Industrial Tribunal was wrong, that the correct interpretation of what was said on 12 May, was the creation of a contract or what purported to be a contract: Mr Kane says Mr Lodge had no authority to make a contract and, therefore, it would be unenforceable in any event and, indeed, the Industrial Tribunal expressly came to the finding that Mr Lodge had no authority to bind the school governors to a permanent contract of the sort claimed by the Appellant. In evidence before the Industrial Tribunal, both Mr Levett and Mr Lodge said that Mr Lodge had no delegated authority whatsoever to enter into a contractual arrangement with the Appellant. Mr Kane says that evidence was not challenged and, accordingly, there is no way in which the Industrial Tribunals finding about that matter can be contested. In argument before us Mr Puntis has produced a document which I understand was not before the Industrial Tribunal, entitled "The Head's Legal Guide". At page 140 it sets out the conditions of employment and responsibilities of deputy heads. They have a specific duty to assist the head in carrying out his or her management responsibilities and Mr Puntis says that it is quite plain from that statement that the duties of the deputy head coincide with those of the head teacher. From our reading of what the Guide says, this is plainly not so. If he is to have the duties of the head teacher, it has to be expressly delegated to him by the head. That is what the guidance says. There was no evidence before the Industrial Tribunals that there was any such delegation. In his argument Mr Puntis has said that:

"It is reasonable to assume that after 4 months of Appraisal discussions, during which Miss Puntis requested that her 'A' Grade be made permanent ... Mr Lodge would have discussed the situation with the Head Teacher and Governors; especially as he remarked that there could be something in addition to the 'A' Grade."

We do not think that this Tribunal is entitled to join with Mr Puntis in making that assumption. Secondly, he says that:

"Mr Lodge's deliberate statement ... 'Have no fears Sue, your 'A' Grade will be made permanent' was made at the commencement of Miss Puntis' Final Appraisal Interview, and was accepted in good faith by her. Mr Lodge's subsequent response, 'I'm sorry Sue, that's what I thought at the time' ... indicates that he had been authorised to make this statement."

Again, we do not think that there is any logical connection of the sort Mr Puntis would have us draw there.

As the Appellant, has been represented by her father who, as I understand it, has no specific legal training, we have considered a number of other options. We have, considered whether Mr Lodge was in any way held out by the board of governors to have apparent authority to contract on their behalf and have concluded that there is no evidence suggesting that they had done anything or said anything or made any representations which could be interpreted as a holding out. On the contrary, we believe that, as a result of her having a temporary promotion for 22 months, she would have been familiar with the drill, the procedures whereby she would be granted promotion whether it be temporary or permanent. There has been no suggestion that any of the temporary promotions between November 1991 and April 1993 had been awarded by the deputy head teacher. Indeed, we think, it would be surprising, if appointment to temporary promotion was followed with all the formalities of a decision of the board of governors (certainly on the first occasion) and of the head teacher that the promotion to a permanent position would be delegated to the deputy head teacher to discuss with and commit the board of governors to the Appellant. Accordingly, we do not find that any case can be made out on the basis that there was a holding out of Mr Lodge to have contractual authority.

We have considered one other possibility, namely that, notwithstanding what has been said before the Industrial Tribunal and notwithstanding the findings of the Industrial Tribunal, Mr Lodge may have had actual authority. We have considered the speculative chance that the erroneous appointment of Mr Parnell in the January of 1993 was an appointment made by Mr Lodge. We have, however, come to the conclusion that the connection between Mr Parnell's appointment and Mr Lodge is so tenuous, or non-existent that it would be wrong to remit this matter back to the Industrial Tribunal to consider that particular point. It would seem that Janet French was the secretary of Mr Levett. All her evidence is related to the functions that she fulfils for Mr Levett and the suggestion that Mr Lodge had anything to do with the appointment is unsupported by any of the evidence.

There remains one further point made by Mr Kane. He submits that, if there was a contract on 12 May, one has to look to the four corners of that agreement to see what the terms were; yet the statement Mr Lodge made on 12 May, was so brief, short and left so much unsaid that any contract his remarks gave rise to would have been void for uncertainty. There is no indication in what he said as to when the permanent appointment would be made. There is no reason to suppose that it would have immediately followed upon the expiry of the temporary appointment on 31 August, nor is there any indication of what the other terms would have been, what would have been nature of the work she would have undertaken to justify her promotion; for instance, during the period between 1991 and 1993, she held at least two different sorts of roles which justified her temporary promotion. We accept that submission as a make-weight point.

In all the circumstances, therefore, we cannot find what Mr Puntis has asked us to find, namely, a contractual commitment arising in any shape or form out of the discussions of 12 May. This was the conclusion that the Industrial Tribunal came to and we do not see that they have directed themselves wrongly or applied the law wrongly in any respect. Accordingly, we feel we must dismiss this appeal.