United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J SUDDABY (of Counsel) Messrs Gareth Woodfine & Co Solicitors 16 St Cuthbert's Street Bedford MK40 3JG


 


JUDGE J HULL QC: This is an appeal to us by Mr Winston Collymore. He is a consultant. The business is management consultancy in the National Health Service. Capita Business Services Ltd are the Respondents.

Mr Collymore applied for a post with the Respondents as associate director; clearly a senior position, he was to be paid a good salary and he was also, apparently, to receive bonuses if he did well.

In fact what happened is set out in the decision of the Industrial Tribunal to whom he applied. He entered the employment on 18 February 1997 and he left on 17 March 1997. He then applied to the Industrial Tribunal complaining at first of unfair dismissal. He abandoned that claim and said that he was entitled to claim damages in respect of a breach of contract.

The decision of the Industrial Tribunal, Mr Salter sitting at London South by himself, as of course he was entitled to, sets out, as I say, what happened.

He says, first of all, that the Respondents provide consultancy and management services and the Applicant is a highly qualified person in this field, working with National Health Service Trusts. Most recently he has worked with PA Advertising. The Applicant applied for a senior position with the Respondents. He was interviewed by, amongst others, Mr Stephen Chandler, a director, and a decision was taken to offer him a job as an associate director.

He worked for a few days in January 1997 on a freelance or very temporary basis, no contract is alleged to arise from that. On 21 January a letter was sent by the Respondents. It said as follows:

"I am delighted to offer you a post as an Associate Director with Capita Management Consultancy."

Then the terms were set out. There were terms concerning a number of matters: annual leave and all sorts of matters of that sort, and it finished up:

"...your appointment will be subject to a six months' probation period during which either side may terminate the employment at one month's notice. Thereafter, a three month notice period will apply this offer is subject to two satisfactory references.

...Your start date will be 1 February 1997..."

Well then, says the Chairman, who of course had heard the evidence:

"A conversation then took place between the Applicant and Mr Chandler concerning the probationary period of 6 months during which the one month notice period applied. The Applicant did not like this term. Mr Chander said, during the course of the conversation, that he would agree to take it out if the Applicant otherwise accepted the terms. The Applicant says there was no such condition proposed. Having heard the evidence of Mr Chandler and the Applicant and, taking into account what happened thereafter, the Tribunal prefers Mr Chandler's version of this conversation. In effect, what he was saying was that if the Applicant accepted all the other terms contained in the letter of 21 January, the requirement of a probationary period would be dropped. The acceptance had to be in writing."

Now we come to a very controversial part of the case. The Chairman goes on:

"The Applicant maintains he did write a letter. The Tribunal was shown a copy letter dated 28 January 1997 addressed to Mr Chandler and signed by the Applicant. The letter read as follows:

'As discussed today, there is no way that I would consider taking up the above post on a probationary period and with only one month's notice on either side.

You have agreed that the appointment is permanent and that a three-month notice period shall apply. You have requested that rather than you rewrite the original offer, I do that this note to you which you will treat as amending the original offer.

I am happy to take up the appointment on this basis. Other minor matters such as the total of the annual car allowance can be addressed once I have joined.

Look forward to a successful working partnership.'"

Then the Chairman goes on:

"Mr Chandler saw the letter for the first time in the Tribunal. He claims it never reached him. The Tribunal accepts his evidence on this point. The letter may well have gone astray. The Applicant did not start work on 1 February 1997 as agreed. He offered no explanation in advance. He started on 18 February 1997 but discussions continued thereafter about the terms of the contract."

Pausing there, that of course is, on the face of it, inconsistent with the allegation that the letter had been sent on 28 January because discussions were continuing about the terms of the contract.

The Chairman went on:

"Mr Chandler maintains that the Applicant continued to question the amount of salary. The Applicant admits that he continued to discuss salary but only in relation to bonus arrangements which had not been finalised by 21 January 1997. The Applicant showed Mr Chandler an offer of employment containing a salary in excess of £50,000. The Applicant denied doing so. The Tribunal accepts Mr Chandler's evidence. On 17 March 1997 the Applicant arrived for work and was invited to meet Mr Busby and Mr Chandler. He was dismissed for a number of reasons, one of which was that they had been unable to reach final terms."

So those were the facts as found by the learned Chairman.

Then he went on to consider he said what is elementary, that a contract of employment is formed, as all contracts, by offer and acceptance and he said where an offer is conditional upon acceptance of all the terms, acceptance of some but not all the terms is no acceptance. Where an employee commences work, having received a letter of offer, the employee will, in the absence of any subsequent agreement, be treated as having accepted the express terms of the offer by his conduct.

It was submitted on behalf of the Applicant that there was no concluded agreement concerning notice during the probationary period and therefore either the general notice period of three months contained in the letter of 21 January applied or, in the absence of any agreement, a reasonable period of notice should be implied; three months was a reasonable period of notice for the position held by the Applicant. The Chairman came to his conclusions:

"(1) The Applicant received a letter of offer dated 21 January 1997. The offer contained a term for a probationary period of 6 months during which the employment contract was terminable on one month's notice.

(2) The Applicant was offered a variation of the offer letter excluding the probationary period on condition that he accepted in writing all other terms contained in the offer letter. The Applicant did not accept the offer as valid either because he failed to respond at all or, if he did respond by letter of 28 January 1997, it was not an unconditional acceptance of the offer as varied because he continued to take issue on another term of the contract (the car allowance).

(3) The continued dialogue between the Applicant and the Respondent following the commencement of employment by the Applicant is evidence that the Applicant did not agree all the other terms of the contract.

(4) The offer to withdraw the probationary period was not accepted by the Applicant and the Applicant was employed on the terms of the offer letter and was accordingly entitled to one month's notice at the termination. It is the unanimous decision of the Tribunal that the Applicant's claim for damages for breach of the contractual provision in relation to notice fails."

Then the learned Chairman went on to say that there was a breach of contract in that a pension contribution had not been paid in respect of the first month and he awarded damages in respect of that. There was no appeal by the employers from that part of the finding.

Now we come to the notice of appeal on which Mr Collymore relies. First of all he says:

"(a) The Industrial Tribunal erred in law in finding that the probationary term of employment and the notice term of one month were accepted by the Applicant. The original proposal was rejected by the Appellant and, hence, either a reasonable period of three months should have been implied... or an express term of three months was agreed between the parties.

(b) The Industrial Tribunal erred in law in finding that the Applicant did not accept the variation of the offer letter. The variation of the offer letter excluding the probationary period was accepted under the doctrine of postal acceptance. Therefore, the contract of employment should have been construed as having contained a term requiring three months notice.

Then he says that:

(c) The Industrial Tribunal erred in law in holding that the Applicant accepted the original terms of the offer letter by his conduct..."

He finally says that his damages for unpaid pension should be for four months pension contributions, not one month.

Mr Suddaby, who has attended before us today and made submissions to us, says that the Industrial Tribunal erred in failing to find whether the letter of 28 January was sent. The Industrial Tribunal said that it certainly did not reach Mr Chandler. They accepted Mr Chandler's evidence and they preferred his evidence wherever it varied, apparently, from that of the Applicant. Therefore that letter, on the face of it, was not communicated to the person who was to deal with the letter if it was to have any legal effect.

It is quite clear from the notice of appeal that what is being said there was that this letter was posted. We are told by Mr Suddaby today that in fact it was left on the secretary's desk, the secretary of Mr Chandler. There is absolutely nothing about that in the Tribunal findings and what is said further, by Mr Suddaby, is that this was a counter-offer, if the Tribunal is right, as we certainly think the Tribunal was, in saying that it did not simply say 'I accept your modified offer to exclude this objectionable term about a probationary period.' It was a counter-offer, and it was accepted when the employers accepted Mr Collymore into their employment and kept him in their employment for a month.

That of course is a case which is quite contrary to what is said in the notice of appeal. Further, it is quite contrary to what was said to the Industrial Tribunal. If we look at page 10, the submission which is recorded on behalf of the Applicant:

"It was submitted on behalf of the Applicant that there was no concluded agreement concerning notice during a probationary period and..."

That is what was submitted to the Tribunal and this submission to us is therefore something which was not submitted to the Tribunal and therefore, on elementary principles, is not sustainable.

The fact is that the Industrial Tribunal, having found that there were, after this alleged letter of 28 January, continuing discussions not only about the question of a car but about questions of salary, found expressly that the matter was not concluded by any 'counter-offer' or whatever you like to call it. The fact was that the employer had made an offer which was not accepted expressly and shortly in terms. Thereafter, Mr Collymore, belatedly, attended the employers and entered on his employment.

In those circumstances, it seems to us, the Industrial Tribunal was right to say (I am paraphrasing of course) "No employer would have a person into their employment on terms which were completely up in the air. If he entered their employment, having had their letter offering him employment, he must be taken to enter their employment on those terms." Therefore it was a case of one months notice and we think that the conclusion reached by the Industrial Tribunal was correct in law.

We think that even if the Tribunal had been forced to a conclusion that there was no concluded agreement a period of one months notice, in the circumstances, would be entirely reasonable and, indeed, in accordance with common sense. Therefore we find that there can be no criticism of this Industrial Tribunal's decision, no fairly arguable point of law and therefore we must dismiss the appeal at this stage.