United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN HARMAN Employment Adviser


 


MR RECORDER UNDERHILL QC

1. We are prepared to allow this appeal to proceed to a full hearing.
2. The Chairman's principal reason for dismissing the Appellant's claim was that, although the Respondents did agree to provide him with a reference in the terms set out in paragraph 12 of the Reasons and went beyond those terms in the conversation which took place between Mr Welham and Miss Davison on 21 December, the agreement as to the form of reference to be given was not legally binding because there was no consideration for it. The terms of the reference were only agreed on 19 November whereas the Appellant had already on 12 November given an equivocal notice of resignation, and he held that since the Respondents were under no pre-existing obligation to give a reference at all the subsequent agreement of the terms of the reference was gratuitous and could not give rise to a contract. We see the technical force of that argument, but the application of the doctrine of consideration is rarely straightforward and we are not prepared to say without hearing the point fully argued that the Chairman's approach was clearly correct.
3. There is in any event a further point. Mr Harman, who appears today for the Appellant and appeared in the Tribunal, tells us that he argued before the Tribunal that the evidence showed that the Appellant's resignation was made pursuant to a prior agreement - he said on 8 November 1999 - under which he agreed to resign in return for the Respondent's agreement to give him a satisfactory reference. That is in accordance with the statement in the originating application that:

"I negotiated an agreement with my boss Carl Welham. I only agreed to resign if I was given a good reference that we were both happy with it."

And that was specifically endorsed in the witness statement which was taken as his evidence in chief – see paragraph 3. If that is correct, it is arguable that the agreement of 19 November 1999 was concerned only with the detailed spelling out of a pre-existing obligation and can be regarded as covered by the consideration given for the original agreement. The Reasons do not reflect the existence of any such pre-existing agreement; but arguably in the light of the evidence to which we have referred the point should have been dealt with. In our view in order to do justice to the Appellant it will be necessary for the Tribunal hearing the full appeal to see the notes of the evidence relating to this point. Mr Harman warned us that the notes might not amount to much, but it is important that the Tribunal at the full hearing sees whatever there is. We accordingly direct that the Chairman supply his notes of the evidence relating to all dealings between the Appellant and the Respondents in relation to his resignation up to and including 19 November. As we understand it the only source for such evidence will be in the cross examination of Mr Welham and Mr Young.

4. While we are on the question of Chairman's notes the Appellant's grounds of appeal at (i) raised three points which on the face of it are factual points. Sub-head (a) alludes to the issue which we have just dealt with, i.e. the question whether there was a pre existing deal before the Appellant gave his notice of resignation. Sub head (c) Mr Harman says he does not wish to pursue further. Sub-head (b) deals with what is said to be a mis-statement of the evidence in relation to who initiated the telephone conversation between Mr Welham and Miss Davison on 21 December. While we are not entirely convinced that the question goes to the root of the legal issues, we are prepared to accede to Mr Harman's submission that it would be preferable for the Tribunal to have the notes of the evidence relating to that point. Again the passages from the evidence will be very short. Any evidence will be in the evidence of Mr Dunn.
5. We have considered what is the effect of paragraph 22 of the Reasons, in which the Chairman expresses the view that even if there was a breach of the agreement the Appellant suffered no loss. The paragraph starts by saying that there is a 'considerable degree of force' in that argument, but reading the paragraph as a whole it seems that the Chairman appears to adopt it. What he says is:

"Mr Welham was in something as a dilemma. He had provided a reference in the form that I have referred to. He was faced with questions from the personnel department of Richmond who wanted further information. Mr Welham could either have said nothing or responded honestly. He responded honestly according to his view of the situation with the consequence that we know. I am satisfied that if he said nothing and simply indicated that the Council stood by the written reference and were not prepared to go further, the applicant's job offer would still have been withdrawn."

As a matter of law, it seems to us that that finding does not mean that the appeal should not be allowed to proceed. If there was a breach of contract the Applicant is entitled in principle to nominal damages. However, a victory on that basis would be an empty victory. We do not see how the finding of fact made by the Tribunal that the offer would still have been withdrawn if Mr Welham had been prepared to do no more than stand by the agreed written reference can be challenged.

6. What, however, Mr Harman says is that that was not the only option, and that the Chairman has asked himself an unnecessarily restricted question. He says that there were other courses open to Mr Welham which might have resulted in Richmond offering the job. We have some difficulty in seeing how that could be so; but we are not prepared on what we know about the case at present to rule out that line of argument, and it will be open to Mr Harman or whoever who represents Mr Young on the full appeal to develop it so far as the Tribunal on that occasion is prepared to permit. There may also be an argument open - we put it no higher than that - that the question is not one for the Tribunal to find as a matter of either/or but that it should have been approached on the basis of the loss of a chance. We believe that point should be allowed to be raised if so advised.
7. The upshot of all this is that although we must allow the appeal to proceed, Mr Young needs to consider carefully with Mr Harman or any other adviser who may assist him whether even if he is successful on the question of breach of contract these are proceedings in which he will ever recover any substantial award. That is not a matter on which we can or would wish to give him any advice, but it is a point which he needs to consider.
8. Subject to those points we allow the appeal to proceed. The grounds of appeal do not raise the points which we have identified in precisely the form that we have identified them, and in respect of head (i)(c) Mr Harman has made it clear it that he does not wish to proceed. We have considered whether we should ask Mr Young to put in new grounds of appeal. In the end we do not propose to make that a condition. If with the benefit of legal advice he feels he can improve his case by putting in amended grounds of appeal in more succinct form we would give him leave to do so within 28 days, on the basis that no grounds would be raised that are not covered by reasoning we have outlined. However, if he does not wish to do that we are satisfied that the Appeal Tribunal on the full appeal would not be in any real difficulty provided it has this judgment in front of it explaining the basis on which we allowed the appeal to proceed. Estimated time 3 hours – Category B.