United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR P MOONEY (Representative) Employment Law Advisory Services The Dock Office Trafford Road Salford Quays Manchester M5 2XB


 


JUDGE J. ALTMAN: This is an appeal from the decision of the Industrial Tribunal sitting at London (North) on 15 July 1998. It comes before us to decide if there is a point of law which can be argued before a full Employment Appeal Tribunal. I refer to the parties by reference to their capacity before the Tribunal. The Respondents appeal on the ground that the Tribunal erred in law in concluding that there was a contract of employment between the parties. The Respondents argue that there was a mistake between the parties as to the salary to be paid, the Respondents believing it was £7,850 per annum and the Applicant believing it was £9,300. Accordingly this mistake, say the Respondents, vitiated the contract which is to be regarded as void "ab initio", that is since its inception, and accordingly they say there can be no claim for wages or for unfair dismissal for asserting a statutory right. They say that that is because the parties were mistaken as to a fundamental term of the contract.

Secondly, Mr Mooney who has, if we may say so, taken every point that could reasonably be taken on behalf of the Respondents, argues that under s.104 of the Employment Rights Act 1996 which gives a remedy of unfair dismissal if someone is dismissed for claiming statutory right against his employer, that claim must be in good faith and here it is asserted that the Applicant cannot be asserted to have acted in good faith. Thirdly, Mr Mooney says that the Tribunal placed undue weight upon the evidence before it in a way which led to a finding contrary to the Respondents' case.

In order to reach its decision the Industrial Tribunal found certain facts. The findings of fact are set out at paragraph 6. It is found by the Tribunal that the Respondents needed a Night Auditor due to a vacancy. It found that the night manager was given responsibility for filling the post. There is no issue between the parties about that. It is found that he advertised the job in a Job Centre at the salary of £9,300 per annum; there is no dispute about that. It was apparently what was paid to a previous incumbent but that was exceptional. The normal rate for the job was £7,850.

It is the Respondent's case that the night manager did not have authority to advertise the post at the higher rate. Nonetheless that was the official advertisement that was placed. The Applicant applied; he was interviewed by the night manager. The Tribunal found that the night manager explained at interview that £9,300 would be the salary although it would be reduced pro-rata because the Applicant would be working less hours than a full week. The night manager did not have authority finally to approve the appointment, so there was a further interview with a more senior person who approved the appointment, though there was no specific discussion about terms. The night manager later telephoned the Applicant, confirmed the appointment including the start date of the 11 March 1998. On the basis of those facts, the Tribunal found that a contract of employment was offered and accepted on the terms that the salary would be the sum represented, that is the higher rate.

It appears that a few days later on 15 March a letter of appointment was delivered to the Applicant containing the salary at the lower rate because that letter, prepared by a more senior manager, recognised that the wrong figure had been given and put in the correct figure. The Tribunal found that it would be normal for the Respondents not to appoint someone except by that form of letter, but it cannot be disputed that in this particular case, the contract of employment was entered into and the Applicant began work before that letter was written and therefore that letter did not contain the terms agreed.

Thereafter, it appears that the Applicant took the matter up with management on receipt of that letter. He spoke to the senior manager who had written it. It appears that she told him, effectively, that he could take it or leave it and the Applicant said he would take the matter further and the senior manager regarded that as being rather aggressive.

Later that day, on the finding of the Tribunal with which Mr Mooney takes exception, the Applicant actually decided to accept the reduced rate of pay, because at least he would have a job whilst he looked for something better, but the implementation of that decision was pre-empted in effect, as the Tribunal found, for when the Applicant rang to make the arrangements to come in, he was told by the night manager that he should not come back to work because management were not satisfied with his attitude, because he had challenged the decision about the rate of pay, and he did not return to work.

A number of matters were raised before the Industrial Tribunal but the particular matter raised here was first a claim under s.13 of the Employment Rights Act 1996 effectively that there was an unauthorised deduction from wages, proceedings being brought under s.23 and secondly that he had been asserting a relevant statutory right, which is entitlement to be paid at the sum that had been agreed and that he had been unfairly dismissed for so doing. Having made those findings of fact and set out the principles of law, the Tribunal turned to its conclusions which are criticised by Mr Mooney.

The Tribunal found, "that there was a contract of employment between the Applicant and the Respondents on the basis of the offer made at the interview and the Applicant's acceptance. The agreed rate was £4.97 per hour". That is the equivalent to the higher to which I have referred and that was their clear finding. They found therefore that there had been an unauthorised deduction of £1.20 per hour.

As to unfair dismissal, that he had made a claim in good faith that he was entitled to that amount, and that he would still have had the protection forwarded by s.104 of the Act, the Tribunal inferred from these facts, referring back to what they had found, that the reason for dismissal was that the Applicant had asserted the right not to have an unauthorised deduction made from his wages.

The submissions are made in this case as follows. The advertisement for the post which led to the Applicant making his application for employment was that it quoted the higher salary, had been placed by the night manager without authority, he was mistaken and therefore, there was a mistake between the parties. Furthermore, the normal practice of the Respondents was to engage staff by letter of appointment and therefore the earlier mistake meant that the contract of employment was void; there being no employment, there could be no application under the Employment Rights Act to the Tribunal.

Mr Mooney, who has done his best to pick his way through the intricacies of contract law supports effectively his submission by saying that the night manager had no authority. It is clear from the facts that the night manager was authorised to place the advert and interview for the post. The Company's advertisement placed in a regular Job Centre advertised the higher rate of pay. The job interview included the higher rate of pay. The Applicant began work for the Respondents at the higher rate of pay. It is impossible it seems to us to criticise the Industrial Tribunal for failing to come to the conclusion that this was done without authority. It may be that within the Respondents' organisation, as between senior and junior management, the junior management had not specifically been given authority to advertise the higher rate, but that is a totally different matter as to whether the Company's advertisement was communicated by the Respondents without authority to the outside world and it is quite clear to us that there is no evidence whatsoever to support the proposition that it was done without authority.

It is said that there was a mutual mistake; that is to misunderstand the law. A mutual mistakes arises if both parties are in agreement, but they are in agreement about something which is incorrect. Here this is alleged the parties each thought different things which is called unilateral mistake, and if I may just quote from the chitty on Contract, the leading textbook, as to the exploration of what the parties intended, because that lies at the heart of whether there was a mistake; "The language used by one party, whatever his real intention may be is to be construed in the sense in which it would be reasonably understood by the other, or at least in the sense in which a reasonable person would construe it."

It seems to us, unarguable to allege that the Tribunal were wrong in the findings of fact that they made in paragraphs 6 of their decision. They found that a contract was formed at the higher rate. There was abundant evidence to support it. Indeed we are bound to say, that we have found no evidence to contradict it. All that happened in this case, even on the Respondents' case, is that after the Applicant had begun his work, properly engaged at the higher rate, the Respondents stumbled upon an internal error and sought to put it right. But to elevate that, as the Respondents seek to do, into a mistake which goes right back to the beginning of the contract, does not seem to us to be an available argument on those findings to which we have referred.

It is suggested secondly, by Mr Mooney that for somebody in the position of the Applicant to come a few days later and assert that he had a contract at the higher rate, as soon as he discovered the fact that there had been a mistake about the published rate, meant that he was not acting in good faith by asserting his right to the higher rate. It does not appear that that was an argument presented to the Industrial Tribunal. We have thought it, perhaps courteous to deal with it. It has no merit whatsoever. There is no evidence it seems to us to support any allegation of bad faith. If a proposed employee sees an advertisement of a post in a regular Job Centre, applies for it, is interviewed for it, has the salary confirmed and begins working at that rate and is told a few days later that the employers want to reduce it, there may be an element of bad faith in that situation, but it certainly is not on the employee's side.

Finally, in that the Tribunal made clear findings of fact that the Applicant decided he would continue with the employment at the reduced rate, led Mr Mooney to urge that they were placing undue weight on the evidence of the night manager. But Mr Mooney has told us that that was the evidence given by the Applicant to the Tribunal together with the evidence that he telephoned to find out which rota he was allotted to. Mr Mooney has said that they do not have rotas. If that was evidence before the Tribunal we can find no argument in law that the Tribunal were not entitled to accept it.

The case has been put before us by Mr Mooney as fully as it could be, but he cannot escape the facts of the case with which he is presented or the actions of his client for which he is arguing. It seems to us, if we could put it loosely, that they sought to close the door, but they did so at the time when the horse had already bolted. The contract was formed and in process and there was no mistake as between the parties.

We would wish to say that we have been, in this case, particularly assisted by the fact that the decision of the Tribunal was expressed in such concise, yet comprehensive terms and in such a lucid way. We find that there is no arguable point of law in this appeal and therefore we dismiss it at this stage.