United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R THACKER (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE CHARLES: This case comes before us pursuant to the special procedure of the Employment Appeal Tribunal to enable the Appellant, Dr Gosling, to show cause why his appeal should not be dismissed on the ground that it does not disclose a reasonably arguable point of law.

In our judgment this appeal does not disclose a reasonably arguable point of law and we therefore dismiss it. Our reasons for that conclusion are as follows.

This case now has a fairly long history and the point that is the subject of this appeal is the point not dealt with in the judgment of the Employment Appeal Tribunal delivered on 27 November 1997, on appeal from an earlier decision of the Industrial Tribunal. In that earlier case the point that is now before us was described as the "breach of contract point" and it has been so described in the application this morning.

The essential issue is whether an exchange of letters in 1992, some three and a half years before Dr Gosling's 65th birthday, when his employment was ended, constituted a variation or extension of Dr Gosling's contract of employment to the effect that he would continue to be employed until 30 September 1996, that is the end of the academic year following Dr Gosling's 65th birthday in November 1995.

Until 1993 it was the practice of his employers to so extend the contracts of employment of Consultants in the St. George's group, pursuant to Clause 200 of the relevant National Terms and Conditions. That clause and the relevant extracts from the correspondence relied on are set out in paragraph 10 of the Tribunal's Extended Reasons which reads as follows:

"10. The Applicant first entered into a contract of employment with the Respondents predecessors in 1967. That contract was subject to the National Terms and Conditions of Service which provide for retirement at the age of 65. The precise words are contained in Clause 200 of the National Terms and Conditions which are in our bundle and read as follows:-

'Where a practitioner reaches the age of 65 the practitioner's employment shall come to an end. If the employing authority consider it would be in the interests of the service however they may offer to extend the practitioner's contract for one year or any lesser period and so from time to time until age 70'.

In the Respondents' Trust there was a practice whereby Consultants with academic appointments could work beyond their 65th birthday until the end of the academic year which was on the 30 September. The purpose of this was to enable continuity of teaching of students. This was important because the teaching was an honorary appointment and, of course, depended upon the teachers being able to carry out their work as Consultants. This facility was in fact extended to all Consultants in the authority's employment. This had been going on for a number of years and certainly was considered by Dr Gosling to be part of his contractual arrangements. Dr Gosling was born in 1930 and in 1992 he was considering undertaking certain financial arrangements. He therefore wrote to the authority on the 27 March 1992 in the following terms:-

'The approaching end of the financial year has prompted me to attempt a little medium team [term] planning both personal and professional. My understanding that it has been agreed that NHS Consultants employed in the St George's Hospital group though obliged to retire at age 65 are entitled to continue in regular full-time employment as such until the end of the academic year i.e. the 30 September in which they attained age 65. I wonder whether you can confirm that this is indeed the case'.

That letter was addressed to Mr Amias, Chairman of the District Medical Advisory Committee. Mr Amias replied in these words:-

'I can indeed confirm that any NHS Consultants employed in the St George's group are entitled to continue in regular full-time employment until the end of the academic year in which they attained the retirement age of 65. Hoping this assists with the medium team [term] planning'.

In 1993 the then employers the Wandsworth Health Authority reviewed their practice of allowing Consultants to work until the 30 September following their 65th birthday. They consulted with the teaching authorities who informed them that this practice was no longer required. They therefore considered that it was not in the interests of the authority any more to grant that extension beyond the age of 65 and on the 4 March 1993 the Health Authority resolved that the practice should discontinue. That was confirmed by the NHS Trust which was formed on the 1 April. On the 12 August a letter was written to all Consultants including Dr Gosling saying that there would no longer be any extension of the contract beyond the age of 65. Dr Gosling having received the earlier letter from Mr Amias in 1992 was concerned about this and he wrote to the authority on the 23 September 1993 stating his dissatisfaction and in polite terms asking for an exception to be made in his case. It was later argued that in fact if there had been a change of contract it was an acceptance by him but we find that that was not so. The authority replied declining to make an exception in his case and further affirming their view that his contract would end upon his 65th birthday. On the 24 November 1995 he attained the age of 65 and his contract therefore ceased."

In our judgment, and with far less hesitation than the Tribunal, this exchange of correspondence does not constitute an extension, or variation, of Dr Gosling's contract.

Clause 200 simply provides the employing authority with a discretion to extend a contract beyond the employer's 65th birthday.

The request made by Dr Gosling and the response from Mr Amias is clearly in general terms as to the policy, or practice, of the employers that then existed. Both letters are couched in general terms relating to NHS Consultants in the plural. In our view it is clear from reading those letters that what Dr Gosling was asking for was confirmation as to the practice, or policy, that then existed and this is the confirmation he received. This view is confirmed by his reaction in 1993 when that practice and policy was changed. That response was to ask for an exception in his case and not to say that it had already been agreed on a "one-to-one" or personal level, that his contract would be extended pursuant to the old policy or procedure.

In his written grounds of appeal which were prepared by Dr Gosling personally and, as we understand it before the Tribunal, a point based on estoppel or possibly legitimate expectation was not argued, or at least was not argued with any force. That point has been taken before us today by Counsel representing Dr Gosling. The argument goes that the letter from Mr Amias is a clear representation upon which it is said Dr Gosling relied and acted.

The first point to be made is, in our view, that the representation is only one as to general practice and not one specifically directed to Dr Gosling's position.

The second point is that it seems to us from the reaction in 1993, that not only was Dr Gosling's view then not that an extension of his contract had been specifically agreed, but equally that a firm promise, or assurance, had not been made to him on a "one-to-one" or personal basis, that his contract would be extended.

The position as we see it, on the face of the correspondence, was that Dr Gosling was asking for and received an assurance as to the general practice which then existed. It is perfectly open for an employing authority to change its general practice upon giving notice that it is doing so. This authority did that in 1993. It was not until 1995 that Dr Gosling attained the age of 65.

It was also submitted to us that Dr Gosling did put evidence before the Tribunal that he had altered his position. There was no detail as to that. The fact that Dr Gosling had taken into account an assurance as to the general practice of the employing authority does not give rise on a consideration of the estoppel point, and thus of what is fair in all the circumstances of the case to a private law position or remedy that the employing authority are estopped from denying that his contract is to be, or was, extended beyond his 65th birthday.

A further point that was raised by the Tribunal and was not challenged by Dr Gosling in his written submissions, but was pointed out by Counsel, was whether or not Mr Amias had actual or ostensible authority to bind the employing authority, given Mr Amias' job description. It would seem to be that that decision of the Tribunal was correct, namely that he did not have authority. This point is however, simply an additional point but not our primary reason for dismissing the appeal. Those reasons are those related to the points described as the contract point and the estoppel point which we have already given.

So in those circumstances, we will dismiss this appeal.