United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR W DIAMOND (Consultant) Peninsula Business Services Ltd Stamford House 361/365 Chapel Street Manchester M3 5JY
For the Respondent	MR M LIVING (of Counsel) Myers Ebner & Deaner 103 Shepherds Bush Road London W6 7LP


 


JUDGE J. ALTMAN: This is an appeal from the decision of the Industrial Tribunal sitting at London (South) on 29 August 1997. It was a decision that the Respondents were in breach of their contract with the Applicant by terminating her employment with less than three months' notice and the Respondents appeal on the basis that the Tribunal first erred in law in construing what was an offer letter as being a contract of employment, and secondly in assessing reasonable notice in the absence of evidence without taking into account specific facts.

The facts upon which the Tribunal based their decision are set out in some detail in their Extended Reasons. They show that on the 3 December 1996, after an application had been made, and an interview had taken place, the Respondents sent to the Applicant a letter offering her a position as a "senior feature writers job with us at a salary of £33,000 a year".

"...you will be a senior member of the features team, involved at every level with the work of the department."

Those were the proposed contractual terms on any view put forward at that stage. The letter went on to say:

"Once you have accepted this offer, we will send you a formal contract of employment which covers all the normal matters, like your 5 weeks' holiday entitlement etc. Naturally, we would love to see you here as quickly as possible. I know that you will be a huge success with us and I look forward to working with you closely so that we can develop your career in the way that you and I discussed."

Do ring me if there any problems. Meanwhile, if you could let me know in writing that you accept this offer, I can process the paperwork."

Two things happened after that. First, on 6 December a written application form, as a standard document was sent to the Applicant who wrote on it, that she had already been offered the job and returned it on 13 December. The Tribunal held that the contract was then concluded. Secondly, after arranging to leave her current employment, the Applicant began work with the Respondents on 10 February 1997.

The next think that happened was that, on 21 February, she received a document which purported to confirm the terms and conditions relating to her employment as "senior features writer". It made provision, first of all, for a trial period of three months, during which she would be entitled to statutory notice only and, secondly that in the event of her continuing employment being confirmed, she would be entitled to three months' notice to terminate employment. We pause to observe that even on the terms of that document itself, the measurement of notice for someone having been accepted for the post after a trial, was three months. It was only in relation to a trial period that the statutory minimum would apply.

For our part, although it is not a matter dealt with by the Industrial Tribunal, it is clear on the face of it, that as a job the Respondents were measuring it as worthy of three months notice, but of course if the trial was not to succeed it would be unrealistic to have to bring that into effect, and so they make special provision for the trial period. That is, to some extent, by the by, although perhaps reassuring for those who look at the conclusions of the Industrial Tribunal.

The letter of confirmation dealt with other matters, so we are told, such as deductions for payment into a contributory pension scheme, details about holiday arrangements, details about the availability of a grievance procedure and the provisions as I have referred to of a probationary period. It is pointed out by Mr Diamond that those were not terms contained in the original offer letter.

The Applicant was unhappy at that point about her job title and complained about that, but the letter of 11 February ended with these words:

"Will you please confirm your acceptance of the above terms and conditions by signing below and returning this letter in the enclosed envelope."

The words below constituted the standard form of acceptance, but the Applicant never signed or returned that letter.

Unfortunately, things did not go well, but we have been told that deductions were made from such salaries she received for the pension scheme, that some holiday was taken and that her grievance was raised under the grievance procedure, all supporting the proposition of Mr Diamond that these terms of the letter had in fact been accepted. Her employment was terminated with one weeks' notice.

Upon those facts the Tribunal based its conclusions. In paragraph 7 the Tribunal concluded that the Applicant received an offer of employment in the letter of 3 December, but the unusual procedure, which they described as odd, of sending an application form resulted in an acceptance of the offer when that form was returned. In their words:

"The contract so concluded did not contain any term about a probationary period."

and they went on to conclude, in a conclusion which seems to us to have been eminently available to them on the evidence, that the employer's optimism about the Applicant's future indicated that, on the contrary, the Respondents never in fact contemplated a probationary period in this case. The contract was silent about notice of termination.

The Industrial Tribunal then went on to make the following finding, which is really the one about which Mr Diamond complains:

"The Applicant never accepted the terms and conditions set out in the letter of 11 February 1997, so that the term about a trial period and notice period which I have recited above, cannot form part of the contract of employment. It was not suggested by Mr Brabbins that I should imply such a term into the contract,........"

It is not therefore open at this stage to argue that the original offer letter, by reference to an impending formal document, was taken to imply into the contract of employment those terms which were later to be included in that formal document.

The position therefore of the Tribunal is that there was an offer and an acceptance and by 10 February 1997 the Applicant had begun work, and Mr Diamond concedes that at that time she was working in accordance with those earlier terms. However, he seeks to argue that the formal document of 21 February does not constitute a variation in those terms. The provision for a probationary period with a special notice period attached to it, is of course quite contrary to the original offer letter, which gave permanent employment in terms.

Furthermore, there was no argument before the Tribunal about implying such a term. When a document by way of setting out terms of a contract is sent to an employee, which within its own terms makes itself unenforceable until it is accepted in writing and signed, we do not understand how an employer can argue that it constitutes the terms of a contract. This document ended with the words, "please indicate your acceptance of these terms". That must mean that the Respondents recognised that constituted an offer and remained an offer until so accepted and an offer is not a term of a contract.

Even if the argument had been before the Tribunal that some such term should be implied, the silence of the Applicant is effectively relied on by the Tribunal as showing that no express term about notice was agreed. We do not understand how it can be argued that simply because an employee goes along with some terms which first of all, are not in consistent with the offer letter, and secondly, were to her advantage and are contained in the written formal document, that that means that the other terms were so accepted. It is not an all or nothing situation.

The Respondents even argued that the Applicant was to be taken to have accepted that later document, but on the face of it, the only action that was taken by the Applicant in relation to that document, was to reject part of it relation to her job description. So we doubt very much that even if the point had been argued, that there could have been found to be any basis for it.

The Tribunal then went on to assess what was a reasonable period of notice, there being no expressed term as they found. We can see no other alternative conclusion which they could have reached, and the question of an implied term not being canvassed.

We have analysed the facts and we have looked at the thinking of the Industrial Tribunal. Our view of the evidence is perhaps irrelevant. It is quite clear to us, that it was open to the Industrial Tribunal to conclude that there was no agreed term as to notice between the parties. It must be conceded that there was no express agreement and clearly there was no argument as to there being one implied. We cannot see any argument in law that a document prepared, unilaterally, after employment has began which contain terms inconsistent as to the permanence her work, can be in some way taken to be the terms of the contract when the terms are not accepted in the very way in which the document containing those terms, envisaged that they would be. That, it seems to us, was the conclusion of the Tribunal.

Mr Diamond goes on to argue that in exercising their discretion to assess reasonable notice, the Tribunal failed to take into account other factors than those which they did take into account as set out properly in paragraph 8. First of all he refers to the provisions of the minimum statutory notice. It seems to us, that that is not evidence of reasonable notice. It is a safety net where there is no notice to be inferred from custom. Although in practical terms, in many employments, these are the actual notice periods, they are not evidence of what is reasonable, it seems to us, in this case and there is no reason that we can find why the Tribunal erred in law in failing to take them into account. It was then suggested that the use of the probationary term was an irrelevance, the length of service of this employee provided for one weeks' notice. The evidence before the Tribunal was that these Respondents proposed that this job, without a probationary period, merited three months' notice, and we cannot see any point in law that the Tribunal failed to take into account that if it had been for a probationary period, there might have been notice for only one week.

There was no error in law in the circumstances which the Tribunal failed to take into account, and indeed we can see no valid argument against their having taken into account the facts as to which we have referred in any event.

There is no error on the face of the Tribunal decision as to the way in which they found that there was no express term as to notice. There was no error of law in their finding that there was no implied term as to notice. There was no error in law in their assessment of what was a reasonable term. This appeal must be dismissed.

At the conclusion of our judgment, Mr Living on behalf of the Applicant asked for costs of this hearing on the ground that the proceedings, in their entirety were vexatious. It has been a very close run thing, as will readily be understood from the content of our judgment, but in the end we have decided not to make an order for costs in this case. It is always sad when an employer of the size of the Respondents in this case, comes to take proceedings with so little prospect of success in a very modest claim on appeal against an Applicant whose award is inevitably going to be eroded by the expenditure of costs. It is always a sad thing when that situation does not inhibit the taking an appeal which is as of the kind to which we made reference in our judgment. We do not propose to exercise our discretion within the rules as to costs. However, as Mr Diamond supported his argument as to why we should make no order to costs with the proposition that the preliminary hearing had made a finding that there was an arguable point of law. We wish to make one thing clear.

The fact that on a preliminary hearing the Employment Appeal Tribunal permits the matter to proceed to a full hearing is not an indication, one way or the other, as to what judgments would be made as to costs before the full Tribunal. At a preliminary hearing the Employment Appeal Tribunal inevitably takes a cursory view and forms an assessment upon the material before it. The full Employment Appeal Tribunal has more material, generally speaking, and forms its judgment upon the case and the Appellants must be alive to the fact that simply because they may get over the hurdle of approval of a hearing, that does not affect, one way or the other, the risks as to costs which has always applied in these Tribunals on the basis of the established rules.