United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR E OKONKWO (Legal Representative) 584 Green Lanes Haringey London N8 0RJ


 


JUDGE PETER CLARK: By an Originating Application presented as long ago as 6th February 1995, the appellant complained of unfair dismissal and breach of contract by her former employer the respondent, Guy's and St Thomas' Hospital Trust. When the matter came before the London (South) Industrial Tribunal on 12th and 13th March 1996 she abandoned her claim for unfair dismissal on the basis that she did not have sufficient qualifying service. Her claim for breach of contract proceeded on the basis that the respondent had prematurely terminated a three year fixed-term contract of employment entered into between the parties.

The facts as found by the Industrial Tribunal were these.

On 15th August 1994 the respondent wrote to the appellant offering a temporary post to cover an employee on maternity leave. It was described as a "temporary post to end no later than 18th September 1997" in the capacity of Administrative Assistant, a junior clerical post.

On 21st August 1994 the appellant wrote to the respondent without referring to their letter of 15th August, purporting to accept their "offer of permanent (full-time) employment as a Higher Clerical Officer".

On 22nd August the respondent wrote, without referring to the appellant's letter of 21st August, offering employment as a Higher Clerical Officer "to end no later than 18th September 1997", and asking the appellant to confirm acceptance of the offer in writing. She did not respond in writing but commenced employment on 19th September 1994.

The respondent found her to be an unsatisfactory employee and following a review of her work dismissed her summarily on 14th November 1994 with four weeks pay in lieu of notice.

The tribunal saw an internal document which was not seen by the appellant until after she commenced these proceedings which document, the tribunal considered, gave the impression that the post which she filled was intended to be on a fixed-term contract for three years. However, the tribunal found as a fact that no fixed-term contract was offered to the appellant. The cut-off date of the 18th September 1997 was dictated by the funding available for that particular post.

The words "to end no later than 18th September 1997", the tribunal found, meant that the employment could last until that date, but it was not a fixed-term contract expiring on that date.

The claim for breach of contract was dismissed.

The Appeal

Mr Okonkwo takes three points in his amended grounds of appeal which he has developed before us today.

First, he challenges the Industrial Tribunal's finding that the parties did not enter into a fixed-term contract. He says that an offer of a fixed-term contract was made to the appellant orally, but accepts that it was not referred to in any of the correspondence passing between the parties.

Secondly, he says that the Industrial Tribunal did not look at the validity of the review carried out by the employer which led to the appellant's dismissal. He submits that there was no contractual right on the part of the respondent to review the appellant's performance.

Thirdly, he says that the Industrial Tribunal ought not to have accepted that when the appellant commenced employment she did so on the basis of the respondent's letter dated 22nd August, as opposed to her own letter of 21st August which referred to a higher rate of pay than that contained in the letter of 22nd August.

As to those three points.

First, it seems to us that there was no written evidence of a fixed-term contract entered into between the parties. We are told that the appellant gave evidence as to the oral agreement as to a fixed-term contract, but it is plain from the tribunal's reasons that they rejected that evidence, and based their decision on the correspondence passing between the parties. That is a question of fact for the Industrial Tribunal with which we have no jurisdiction to interfere.

Secondly, the validity of the review carried out by the respondent. It seems to us that the question of whether or not the employer was contractually entitled to carry out a review of the appellant's performance might be relevant where the claim is one of constructive dismissal, whether for the purpose of a claim for damages for wrongful dismissal, or indeed, a claim for unfair dismissal. However, in this case dismissal was admitted, and it seems to us that whether or not the review was carried out under the terms of the contract was immaterial to this claim for damages for wrongful dismissal.

Thirdly, it seems to us again as a matter of fact, that it was open to the Industrial Tribunal to conclude that when the appellant commenced her employment she did so on the basis of the last offer contained in the respondent's letter of 22nd August. Again, that is a matter with which we cannot interfere.

Our jurisdiction is limited to correcting errors of law by Industrial Tribunals. This is a preliminary hearing held to determine whether or not the appeal raises any arguable point or points of law to go forward to a full hearing. In our judgment, it does not, and in those circumstances we must dismiss this appeal.