United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	MR JONATHAN HOLL-ALLEN (of Counsel) Messrs Eversheds Solicitors Senator House 85 Queen Victoria Street London EC4V 4JL


 


JUDGE J HULL QC: Mr Henry, the Appellant, is a Barrister. He, at the material time, had part-time employment lecturing in legal topics at Lambeth College, which is near Clapham Common. He was first employed in 1984 and 1985 by colleges or a college which were the predecessors of Lambeth College.

He was apparently, so it was said, employed each year on an annual contract. That is what is said by the Respondents. Mr Henry himself says: "No, that was not so. At first there were no written contracts" (I am putting it very shortly and without attempting to be very particular about it) "and then presently there were, from time to time, these annual contracts which I signed, but nobody ever said 'these are to take the place of everything that has gone before' and therefore there was continuing", says Mr Henry, "because this was a long term relationship - there was a continuing background of a contract, which was not in writing, and whose terms therefore would be considered as supplementing or over-arching the entire relationship of the parties". (I hope I am not doing injustice to the argument).

Then in April 1995, and before, it was becoming apparent that the courses which Mr Henry used to take, which were beginners' courses, were going to be amalgamated with another course and that work for Mr Henry was unlikely to be available, at any rate in that particular course.

We have been shown minutes of a meeting at which that was made plain and in due course, therefore, his contract ran out. We have been invited to look at the contract. It is fortunately not a very complicated document. It is to be found at page 15. It sets out Mr Henry's agreements. He was to lecture or tutor, or conduct a workshop (I think it is called) on Monday, Thursday and Friday (the hours are given) and the end date for these activities was to be 19, 22 and 23 June 1995. That is the end of the academic year for these purposes and it was signed by Mr Henry on 17 October 1994. There are conditions on the back of that contract and incorporated in it. They say:

"The contract will terminate automatically on the date shown on the Engagement Form [that is clause 3 of the conditions]. It may, however, be terminated earlier by either party, or varied in accordance with the following provisions:

(ii) By the college giving two weeks written notice of termination of the contract, or of part of the contract, and a written statement of the reason(s) for termination."

Then there is a right of personal hearing by the Principal, following the expiry of a part-time contract which is not renewed. So that was ostensibly the mechanism of the contract and that, says Mr Henry, is subject to a background contract. In other words the full terms were not contained in this contract.

One looks to see, first of all, whether there is any legal basis for that contention. We have been referred, among other things, to the case of Hawker Siddeley Power Engineering Limited v Rump [1979] IRLR 425. That was a case in which an employee had signed a contract, but was told on signing it, by the employers, "Sign that contract and I will get in touch with the office and you will only work in Southern England", the contract giving a wider right to the employer to insist on general deployment, work elsewhere. That is a classic instance of a situation in which the parties have agreed that their contract is not to be reduced entirely to writing; that there is to be another term of the contract. There are many such cases in which the contract is only partly in writing, but of course if parties produce to a court, or one party produces to a court, what looks like a contract in writing and the other party says, "No, that is not the whole contract between us, there are other terms", that party will be expected to say when and how those other terms were entered into; what exactly they contained, how it comes about that the writing was not intended to embody all those terms, and therefore to tell the Tribunal either that some term or other in the written agreement has been agreed not be operative, or that the written agreement is silent on some matter which ought to be brought in.

We have looked at the evidence. We have looked at the decision of the Industrial Tribunal. It does seem to us that, although this suggestion was raised, there was simply no evidence before the Industrial Tribunal on which that Tribunal could have concluded that this written agreement was not intended to embody the full agreement of the parties. There was no evidence before them of another term entered into. There was no evidence of a conversation or a letter or anything of this sort saying, "We accept that this part of the contract will not be operative. We accept that there is an extra term with regard to notice", or anything like that. Indeed, the contract itself says, and I am going back to the conditions I have just been reading from:

"The contract is subject to the Further Education Teachers in England and Wales Agreement, the Silver Book."

We think the suggestion that there was a further contract behind this written contract, which the Tribunal should have given effect to, is simply not supported by any evidence which the Tribunal could have given effect to. But we must look now at a second contention, which is made by Mr Henry concerning this, with reference to the Silver Book (as it is called). This is a Collective Agreement and the relevant passages have been copied for us, for which we are grateful. When we look at the opening section, section 1, it says:

"This document sets out in a collective agreement salaries and conditions of service of full time lecturers (and associate lecturers as provided for in section 13) in all establishments of further education. ..."

That quite clearly did not apply to Mr Henry. Section 1.4 goes on:

"In addition to the lecturers described in paragraph 1.1. this document applies to:-

(a) Lecturers in part-time service paid on hourly rates: ..."

That did, on the face of it, apply to Mr Henry.

"Conditions of service are set out in section 14 below, [except] .."

And there is an exception that seems to have nothing to do with this case.

Then we go to look at section 14:

"CONDITIONS OF SERVICE FOR OTHER PART-TIME LECTURERS

14.2 Part-time lecturers within scope of this section shall be entitled as follows:-

(a) To a written contract of employment which shall specify ...

(iii) The date of termination of the contract."

And then there is a provision as to notice:

"(h) Provided that the contract is for a term or more, [and this contract, of course, was] to receive two weeks (paid) notice of termination of contract or of part of a contract and a written statement of the reason(s) for such termination where the notice has effect on a date earlier than that provided in the contract at the outset."

So that if Mr Henry's agreement was to be terminated before 23 June, then he was entitled to two weeks' notice and that notice was to tell him why it was being terminated earlier.

Mr Henry has suggested to us that he is entitled to take advantage of section 5 of the agreement, which is also with our papers, and is nothing to do with paragraph 14. That section provides:

"For the purposes of this section, so as to avoid involuntary breaks in service in transferring from one LEA to another, the calendar year shall be regarded as consisting of three notional terms as follows: the spring term [and it sets out the dates] ... ; the summer term ... ; the autumn term from 1 September to 31 December."

And then it provides that:

"The appointment shall ... be terminable only at the end of any term as defined in 5.1 by the LEA or by the lecturer ... giving notice in writing to that effect not less than two calendar months before the end of the spring or autumn terms or not less than three calendar months before the end of the summer term; ... "

"I am entitled to the benefit of those provisions", says Mr Henry, as we understand him. It is manifest that that is wrong, with all respect to him. It is quite clear to us that those are referring to the full-time lecturers who are referred to in section 1.1. When you go to section 14, which does relate to Mr Henry, you find a quite different provision with regard to these contracts and the reason is obvious, or should be. "These part-time lecturers are on a fixed term contract with limited hours". So they know when their contract is going to end and the only requirement for notice arises if the employer wishes to terminate it early, in which case he can be expected, and is expected, by the rule to give reasons for his decision and reasons for giving the notice.

So it does seem to us that there was no other contract than the one which we have looked at. There had been a succession of contracts. Each came to an end by effluxion of time, in June usually of each year. It is perfectly true that there were ample indications that both parties, the college and Mr Henry, hoped and expected that the contract would be renewed with a fresh contract each year. Indeed, we are told that at times Mr Henry was good enough to provide his services during what might be called "the long vacation" between the Summer and the Autumn.

So that was the hope of the parties, but we can find nothing here to make us think that any Tribunal could have held that matters were otherwise than were urged by the Respondent, namely a succession of fixed term contracts. Of course technically, by virtue of the Employment Protection (Consolidation) Act 1978 and now the Employment Rights Act 1996, on the termination of each of those fixed contracts, unless it were renewed, there was a dismissal and a dismissal, on the face of it, by reason of redundancy, because the Applicant was no longer wanted, although that would be a matter, no doubt, open to argument.

We have been told by Mr Henry that there are "various possibilities". No doubt as a matter of, so to speak, legal dissertation or the sort of intelligent discussion one gets in text books, such as Cheshire, Fifoot and Furmston, that would be so, but we think that the true position is as we have stated. It was of course for the Tribunal to find what the position was and they did so find.

Then Mr Henry now tells us that he was aware that his contract had come to an end in June. He did not, we think, say that to the Tribunal. He seems to have suggested that it came to an end, indeed this was what he said in his application to the Tribunal, on 18 September 1995, a date on which he received a letter which we will refer to. But he says now that he was well aware that his contract had come to an end in June 1995. However, says he, he had no reason to suppose that he had been treated unfairly. He heard no more. He had already been at meetings and so forth. He was well aware that his course was going to be amalgamated with others and there was no question of his continuing to lecture on his particular course, but he hoped that the college would use its best endeavours to find him further work. That was his hope. He continued in that hope, he says, until he received a letter of 18 September. That is also with our papers at page 26 of the Respondent's bundle. Mr Clisham wrote then to Mr Henry:

"With reference to your letter of 13 September 1995.

I am sorry to inform you that at the moment we have no hours teaching to offer you. As you are probably aware with the departure of Caroline [that is another senior person] we decided to convert the evening Access course to a full-time day course. Thus there is no Law teaching available in the evening (apart from Paralegal which is, as ever, covered by John Dua-Agyemang).

I will of course contact you if the above situation changes."

Having received that letter, it may be that Mr Henry realised that his hopes were by now dashed and that that prompted him to issue the proceedings which he did. Those were signed on 4 October 1995 and received by the Central Office, which is the important date, on 6 October 1995, an application to the Industrial Tribunal on the basis that Mr Henry had been unfairly dismissed.

The Respondents put in their reply saying that he had been dismissed for redundancy - by operation of law that would be the effect of the termination of the contract - and that his complaint was out of time. Of course if, as they said, the termination of his contract was on 23 June, it would be 22 September which would be the last date for making the complaint.

The Industrial Tribunal set out many of the facts to which I have referred. Of course the facts are for them alone, as I thought it right to remind Mr Henry. We have no jurisdiction to find facts. Our jurisdiction is purely in law, so we have to look to see what the Industrial Tribunal found.

They say, after setting out the history which I have referred to, that he was aware that the course was coming to an end. They say, at paragraphs 4 and 5:

"After the expiry of his fixed term contract on 23 June 1995 the Applicant heard nothing more from the Respondent before and after the next term began on 4 September 1995. On 13 September the Applicant wrote to Mr Chisham [Mr Clisham] stating that he noted the teaching calendar had started but he had not received a teaching timetable or a teaching contract and asking that he be informed of the current position. On 18 September 1995 Mr Clisham replied by post that the Access to Law course on which the Applicant taught had been converted from an evening to a full time day course and there was no alternative work. In receipt of this letter the Applicant was still within time to submit a complaint of unfair dismissal on 23 June 1995, the final day for receipt of an Originating Application within the three month time limit being 22 September 1995.

There was then correspondence about entitlement to pension and a redundancy payment and in a subsequent telephone conversation with the Respondent's payroll office about his P45 the Applicant was told that he was not entitled to one as he was still employed. The Applicant completed an Originating Application alleging unfair dismissal which was received on 6 October 1995 in which he gave the date of termination of his employment as 18 September 1995, the date of Mr Clisham's letter."

Then they conclude, at paragraphs 6 and 7:

"On the preceding facts, as we find them to be, we are satisfied that the effective date of termination of the Applicant's employment was 23 June 1995, the date of termination given on his final engagement form. We are satisfied that it was made clear to him that the only course on which he taught was not to continue in the next academic year and that his services were no longer required, at least for that period. In the interests of efficient administration we would have expected to see some formal notification in addition to the standard letter of April 1995 sent by Miss McEnhill, perhaps also an expression of thanks for past services, but it was clear that the College administration leaves something to be desired in such matters, as the subsequent confusion in the payroll department evidenced.

The Applicant's final contract of employment contained a clear and explicit term that his employment would terminate on the date shown on the engagement form, and that was 23 June 1995. Had the Applicant been in doubt about this, which we do not accept he was, it is inexplicable that he should delay enquiry as to his new teaching commitment until nine days after the commencement of the new term, considering the time which would be required for lecture preparation on a new course. The Applicant is by profession a barrister and can reasonably be expected to acquaint himself with time limits for lodging a complaint of unfair dismissal. He was still within time on his receipt of Mr Clisham's letter and there is no evidence on which the Tribunal would be able to exercise its discretion to extend the three month limit, as it can do when it is satisfied it is not reasonably practicable to lodge a complaint within three months."

We are asked by Mr Henry to say that they failed to appreciate his case and that they should in the circumstances have held that it was not reasonably practicable for him to present his complaint within the three months. He has referred us to section 111, which is the successor of section 67.

First of all, it is to be noted that the Tribunal were correctly applying the statutory words to the task on which they were engaged, but we must also look at the Chairman's notes of evidence. They set out Mr Henry's evidence. He told them (this is in the Chairman's notes):

"4. A fixed term contract had begun at a specified date in 1994 and he maintains ended on 18/9/95."

That is what he told them in contrast to what he told us today. Then he says that he told the Tribunal, among other things, that alarm bells began ringing when he began the correspondence, that was shortly before this phone call. Then:

"22. He phoned payroll department as to why he had not received a form P45 and was told that there was no record of his employment ending. The manager was not there. He wrote document A1/8 [a letter]."

And then the Notes say:

"23. He knew that his employment had been terminated on receipt of the letter on 19/9/95."

As I say, that is not what Mr Henry told us this morning. The notes continue:

"24. Basis of his claim of unfair dismissal was that he had been made redundant. He agreed that he was issued a form IT1 earlier but he did not then know the reason for his dismissal."

So the basis of his claim was that he had been made redundant and, as he told us today, he thought that his contract had come to an end and he was therefore being made redundant in June. Now what Mr Henry has told us about it is this. This is what I was putting to him: "Was it his case that on getting that letter from Mr Clisham, although he realised his contract was at end, he had been holding his hand and not wishing to take hostile proceedings against the employers, because he was hoping against hope that they would find him, in fact, some extra work and that was why he had delayed?". "No", said Mr Henry, "that is not my case. My case is this; that when I rang the payroll department on 2 October they told me they had no record of the employment ending and that made me think that I had been unfairly treated". I say this rather in parenthesis, - how can that be? If they were right and, putting it at its highest, his employment had not ended, he had no right to issue proceedings against the employers for the short and simple reason that he was still employed. If, on the other hand, they were quite wrong about that, there was a mistake in their office. How could that indicate that he had been unfairly treated?

Mr Henry has referred us to another case on this topic. It is the case of Marley (UK) Ltd v Anderson [1994] IRLR 152. In that case Mr Anderson, after he had been dismissed (and thinking that there was nothing to concern him about the fairness of his dismissal) found that there were most important matters which he had not been aware of. The first was that there had, in fact, been a merger. That is very important in Employment Law. The second was that, so far from his job being redundant, another man was doing it. Those were matters which he became aware of and it was held that it was not reasonably practicable for him to launch proceedings until he was aware of the facts and the matters which would found such proceedings. That was on the facts of that case. We therefore did ask Mr Henry, rather forcefully and, indeed, more than once, how it was that that phone call could have given him information which he did not have before which enabled him to launch proceedings for unfair dismissal. He does not even mention that phone call in his application, but certainly he did explain to the Industrial Tribunal, as he did to us, that that phone call was the essence of it. Before that phone call he did not feel that he had any material for alleging unfairness and the phone call gave him that material. One only has to state it to see that it does sound, on the face of it, irrational, and then when one looks at what the Industrial Tribunal said (which I have already read once about this) - he was a lawyer; his case rested on the unfairness of his dismissal - he knew that he had been dismissed in June. What more is there to say? His cause of action, if he complained about fairness, was then complete and, of course, he was fully entitled to launch proceedings contending, although perhaps not being able to prove at that stage, that the dismissal was unfair and then the employers would be obliged to show what the reason was for his dismissal, and they would then be expected to give evidence about how they had behaved in treating that reason as a reason for dismissal. The matter would be gone into and the Applicant himself would be able to give evidence about matters.

The essence of this case, it seem to us on the section 67 point or the section 111 point, whatever one likes to call it, is shown by the actual words of the Tribunal. They said, first of all that the date of termination was 23 June. They said that he was well aware of that as, indeed, he has in fact told us today.

It does seem to us that this is a case where Mr Henry is, with all respect, trying to put his case in a quite different way from the way that he was putting it to the Industrial Tribunal. It is for the Industrial Tribunal to say whether it was reasonably practicable to present the complaint within the three months. They were able to assess Mr Henry when he gave evidence to them, when he was cross-examined. They were able to form a view about what weight to give to each piece of evidence, what credit to give to it. Unhappily, they had to reject Mr Henry's evidence, or rather to say that they did not accept his evidence on that very important point. They found, as he now acknowledges, that his contract ended on 23 June. Having found that, it was for them to say whether there was anything which made it not practicable for him to make his application to the Tribunal within the three months. He laid before them all these matters. They were unable to say that there was anything which made it not reasonably practicable and, of course, that was the only question which they had to decide. If they had decided it was not reasonably practicable they would have gone on to say whether he had presented it within a reasonable time thereafter.

The burden was on Mr Henry to satisfy them that it was not reasonably practicable. They refer, it seems to us, very justly to the fact that he is a barrister and not merely a newly called barrister, but a barrister of experience and one whose skill in the law was such that he had lectured for many years on various topics to students at the Lambeth College.

In those circumstances it appears to us that that was a conclusion which, as a matter of law, the Tribunal was fully entitled to come to. It is not for us to say whether we would have reached the same conclusion. It is not for us to say whether we think that most Tribunals, or all Tribunals, would have reached the same conclusion. All that is beside the point. What we do have to say is, is there any error of law in that conclusion? - looking at all the arguments which have been advanced to us we have to say that, having thought about it as carefully as we can and noted all those points, there is no error of law, either on reading the decision, or looking at the notes of evidence, or listening to the argument which has been advanced to us.

So in those circumstances we are bound to dismiss the appeal.

________________________________

There is an important duty on every appellant to have regard, not only to his own interests, but to the interests of the Tribunal to whom he is appealing and perhaps more important still, the interests of the other party.

In the present case we think that Mr Henry has acted with regard to his own interests and ignored the interests of other people when he found that this date was inconvenient. It was perfectly open to him to tell his employers that he had an important appointment on 4 July with a Tribunal and that that date he really must keep free. He belatedly sought to get this date postponed. He was told, quite rightly, that this Tribunal, which is concerned to keep its appointments and promises to litigants, was not prepared to postpone it on the basis that it was inconvenient for Mr Henry. He then, after considering the matter, said that he would withdraw his appeal. That of course meant, if it was intended, a considerable saving in costs.

The Respondents said that they would ask for costs because there was an unreasonably late withdrawal of the appeal. "All right then", says Mr Henry, "I am going on with my appeal". The substance of it is that he was perfectly prepared to withdraw his appeal until he heard he might have to pay some costs and so the appeal would not have been heard were it not for Mr Henry's feeling that he might have to pay costs. That is the substance of it.

It is perfectly obvious to us that he could, if he had not had the foresight to make sure this day would be free for him, have perfectly well have made arrangements, as he has now, to be here himself, or he could have considered instructing Solicitors and Counsel himself, on his own behalf. In one way or another he could have made sure that costs were not wasted.

So from the Respondents' point of view, who retained London Solicitors and instructed Counsel, it has been a case of on-off-on and one can certainly see that the Solicitors being told, at the very last moment, that the appeal was, in fact, alive and would be fully argued, must have led to considerable dislocation in their office.

We think it necessary to say that we disapprove of Mr Henry's behaviour in that regard and we think that the best that can be said is this; that a person who is imprudent enough to act as his own lawyer is to that extent disabled from taking an objective and sensible view about things which might, if he were acting on behalf of others, be quite obvious to him when he sat down in a calm frame of mind to think about it.

In those circumstances we think there has been unreasonable behaviour by Mr Henry. What is the just order to make in the view of this unreasonable behaviour? We think that the just order is to make an assessment of the least possible sum which will have been caused in the way of disruption and extra work because of the lateness of his decisions. We are only making an approximate assessment. We are told the figure asked for is of the order of £600.

We think that applying the extremely conservative approach that we have mentioned, a sum which is perhaps more apt to mark our disapproval than anything else, the sum of £250 would be sufficient. We cannot imagine any lesser sum in terms of Solicitors' and Counsel's extra hours caused by the lateness of this case being seen to be effective. The fact is that £250 at least, in our view, must have been incurred through Mr Henry's unreasonable behaviour, so that is the order which we propose to make, noting that it is substantially less than the sum which is asked for.

Judge J Hull QC

Mr I Henry v The Governors of Lambeth

I was unable to check some of the quotes as I could not find these in the documents.

Iris

(Typing)

19 August 1997