United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No appearance or representation by or on behalf of the Appellant.
For the Respondent	MR PETER WALLINGTON (of Counsel) Instructed by: Messrs Girling Solicitors Stourside Place 4th Floor 35-41 Station Road Ashford Kent TN23 1PP

SUMMARY

Contract of Employment

Case remitted to Employment Tribunal for further consideration. The Respondent concedes that Employment Tribunal did not make clear whether its finding that there was no agreement between the parties was based on an objective view of the facts.


 


HIS HONOUR JUDGE D SEROTA QC

1. This is the full Hearing of an Appeal by the Claimant from a Decision of the Employment Tribunal at Ashford chaired by Mr M Zuke, which was promulgated on 28 October 2003. The Employment Tribunal dismissed complaints by the Claimant of disability discrimination, sex discrimination, and a claim under the Part-time Workers Less-Favourable Treatment Regulations. It also dismissed his claim for wrongful dismissal.
2. The background to these proceedings can be shortly stated. The Claimant is admittedly disabled within the meaning of the Disability Discrimination Act 1995 suffering from irritis and dyslexia. He had been a mature student at the Respondent for a PGCE. He also apparently has a law degree.
3. His tutor, a Mr Dunhill, thought very highly of him. Mr Dunhill was the acting Head of the Department of Childhood Studies and was aware that the College needed a part-time Lecturer to deal with the law of the child and the family starting in October 2002. This involved something like two hours teaching with one hour's preparation. He had discussed this position with the Claimant, who had expressed interest.
4. We can thereafter take matters relatively shortly. There is no doubt that discussions took place in May of 2002 with a view to Mr Wright possibly taking up the role of part-time Lecturer. The issue between the parties was that the Claimant maintains as a result of those discussions there had been an offer of the post which was accepted by him to take effect in the autumn; and the Respondent's case was that there had never been a concluded contract. There is no doubt that at one time, and we say this in a wholly neutral way, the Respondent was willing to at least consider appointing the Claimant but as a result of a second interview that took place and, what the Employment Tribunal considered to be his surly attitude, the Respondent changed its mind and decided it was not prepared to consider the Respondent for the course at all. We need say no more about this.
5. It became apparent from reading the Notice of Appeal that the Employment Tribunal had not made clear the basis upon which it rejected the argument that there had been a concluded contract. The law, we are satisfied, is correctly set out in Chitty on Contract paragraph 2.002, 28^th Edition.

"The offer is an expression of willingness to contract made with the intention, actual or apparent, that it is to become binding on the person making it as soon as it is accepted by the person to whom it is addressed. Under the objective test of agreement, an apparent intention to be bound may suffice, i.e. the alleged offeror (A) may be bound if his words or conduct are such as to induce a reasonable person to believe that he intends to be bound even though in fact he has no such intention. …"

6. Now it might be said that the Employment Tribunal in this case approached the matter on the wrong basis in finding that there was no concluded agreement. Clearly the subjective views and intentions of the parties are not relevant but the Employment Tribunal failed to make its position in relation to this matter clear. The matter came before His Honour Judge McMullen QC on 21 January and he stayed the matter for 28 days so a review could be sought from the Employment Tribunal. The Claimant then sought to review the decision of the Employment Tribunal and his time for doing so was extended by the Employment Tribunal which refused his application on the basis it had no likelihood of success. After certain further interlocutory hearings, His Honour Judge Prophet referred the matter to a preliminary hearing and it came before His Honour Judge Prophet [I think] on 28 May and before His Honour Judge McMullen QC on 7 June when directions were given for amended Notices of Appeals, fresh evidence and Skeletons. Additional Grounds of Appeal was served on 22 September and on that date Her Honour Judge Wakefield, who presided over the Employment Appeal Tribunal, referred the Appeal to a full Hearing on the issue of whether the Employment Tribunal may have been wrong in its approach on the question of whether there was a Contract of Employment. She gave permission to amend the Notice of Appeal. An Application to adduce fresh evidence was also dismissed, as was an application for the Appeal Tribunal to ask for clarification from the Employment Tribunal of its conclusions set out in paragraphs 28 and 29 of the Decision.
7. Amended Grounds of Appeal were then lodged, and we feel bound to say, having seen the amended Ground s of Appeal, and we have already debated these with Mr Wallington, that at least two of those grounds which raise or seek to raise issues of perversity, that is Grounds 1(iii) and 2(iii) are grounds for which no permission was given. Furthermore, when one seeks to raise issues of perversity the Practice Direction requires certain particulars to be given; those particulars have never been given. We see no reason in the exercise of our discretion to allow those particular grounds of appeal to go forward and they are therefore to be treated as dismissed.
8. Now the grounds of appeal fall into two categories. The first grounds of appeal are to the effect that the Employment Tribunal should have applied an objective, as opposed to subjective, test in determining whether there had been an agreement between the parties. It is accepted by the Respondent that the Employment Tribunal has not made the position clear and it accepts that the matter should be remitted for further hearing before the Employment Tribunal. We shall come to the question of remission later in this Judgment. It seems to us, and we make clear, that it may well be that the Employment Tribunal has applied the correct test but it is necessary it seems to us for this matter to be remitted to the Employment Tribunal to determine whether on the objective test for determining if there has been a concluded agreement, there was in fact an agreement between the parties. If the Employment Tribunal concludes or has already concluded that, based on that objective test, there has been no concluded agreement it will not be necessary for the Employment Tribunal to go on to consider Ground 2.
9. Ground 2(i) and Ground 2(ii) relate to the issue under Regulation 2 as to whether or not the Claimant was a part-time worker and whether he was in fact engaged in similar work with Mr Dunhill. Again, it is accepted by the Respondent that this is a matter that may need to be considered by the Employment Tribunal and the matter should be remitted but, of course, the Employment Tribunal will only need to consider these points if they find in the Claimant's favour on the first ground of the appeal.
10. There are two further grounds of the appeal, that is 2(iv) and 2(v), which deal with the suggestion the Employment Tribunal failed to determine or give reasons as to whether the difference of treatment between the Claimant and Mr Dunhill could be objectively justified. This raises issues in relation to Regulation 5 which was never considered by the Employment Tribunal, and we understand from Mr Warrington no submissions were sought by the Tribunal on this point. This matter must also be remitted to the Employment Tribunal but the Employment Tribunal will only need to consider issues relating to Regulation 5 if it has not only found in the Claimant's favour that there was a concluded agreement but has also found in his favour under Regulation 2.
11. In case I did not make this clear earlier the perversity ground of appeal added in paragraph 2(iii) is one for which there has been no permission and where there have been no particulars given and that stands dismissed for the same reason as we dismissed the perversity allegation in the amended grounds of appeal under paragraph 1.
12. Now it seems to us that the matter should appropriately be remitted to the same Employment Tribunal. We have had regard to the guidance given by the Employment Tribunal chaired by the President in the case of Sinclair Roche & Temperley v Heard v Fellows [2004] IRLR 763. In our opinion, the Employment Tribunal should deal with the issue as to whether there was a contract and, if necessary, the issues arising under Regulation 2 without hearing further evidence but after calling for further submissions from the parties. It is only if the Employment Tribunal have determined those issues in favour of the Claimant that it will be necessary for the Employment Tribunal to consider Regulation 5 and the Employment Tribunal will obviously need to have a further Hearing or doubtless give Directions in due course as to how that should be approached.
13. Now we note that Mr Wright is not present. He has made an Application for an adjournment, which was dismissed by the Registrar. This case has been going on for far too long, it needs to be determined as quickly as possible and we do not consider that Mr Wright has, in any event, been prejudiced by his absence here today. We have had regard to the documentation that he has sent, and the reason that we do not consider that he has suffered any prejudice is because his grounds of appeal that were permitted by Her Honour Judge Wakefield have in fact been conceded by Mr Wallington. In those circumstances we allow the Appeal to the extent that we have said.
14. Mr Wallington has made an application for costs based on a Calderbank letter. We consider the application to be premature as it prejudges the decision of the Employment Tribunal. We adjourn the application and give permission to him to restore it, if so advised, after the conclusion of the proceedings in the Employment Tribunal. We would be receptive to submissions being made in writing.