Case No 4100220/2024Venue Edinburgh remotely by Cloud Video PlatformHearing 2 April 2024
Between
Mr Naeem FakherClaimantSocial Care Alba LtdRespondent
Before
Employment Judge A KempDate 6 June 2024
JUDGMENT
The respondent had not concluded a contract of employment with the claimant and the Claim is dismissed.
REASONS
[1]This was a Final Hearing held remotely. The claim made is for breach of contract. The respondent disputes the claim and argues that it was not in breach of contract. E.T. Z4 (WR)[2]This is a claim where there was no employment that commenced in fact between the parties. I did initially consider whether or not the Tribunal had jurisdiction having regard to the terms of Regulation 3 of the 1994 Order referred to below, which refers to there being jurisdiction where a claim arises or is outstanding on termination of employment. That was so although the respondent did not raise any challenge to jurisdiction. It is a matter as to which the Tribunal requires to be satisfied. Here there was no termination of employment as the contract did not commence. But I am bound by the decision of the EAT in the case of Sarker v South Tees Acute Hospitals Trust [1997] IRLR 328 which held that a claim of breach of contract was within jurisdiction in such circumstances. Evidence[3]The parties had each prepared their own documents that they wished to rely on in accordance with case management orders issued. Evidence was heard from the claimant, and for the respondent from Ms Fatou Sanneh.[4]Before the hearing commenced as the claimant was a party litigant and not legally qualified or experienced I explained about the giving of evidence and the conduct of the hearing. I stated that documents relevant to the issues should be spoken to in oral evidence, as otherwise they would not be considered simply because they were before me. I also explained about cross examination before the respondent’s witness gave her evidence, and after evidence was heard about the making of submissions.[5]I asked a number of questions of the claimant to elicit facts under Rule 41, seeking to put parties on an equal footing under Rule 2. Issues[6]The issues were identified at the start of the hearing, in a manner that it was hoped would be comprehensible to the claimant and are:(i) Was there a contract of employment between the parties?(ii) If so, was the respondent in breach of that contract (when it withdrew a conditional offer of employment to him)?(iii) If the answer to both of the foregoing issues is yes, what losses did suffer from that breach? Facts[7]The following facts, material to the issues before the Tribunal, were found to have been established: The claimant is Mr Naeem Fakher. The respondent is Social Care Alba Ltd.[10]The respondent advertised a post as Administrative Assistant, which the claimant applied for. At that stage he was a care worker for another company named Carrgomm.[11]The claimant was interviewed for the post by the respondent. The respondent then wrote to the claimant with a conditional offer of employment by letter dated 26 September 2023. The claimant accepted the offer that day. The conditions included reference to checks, one of which was that the respondent receive a satisfactory work reference.[12]The claimant’s existing employer provided a written reference which was received by the respondent on 27 September 2023. It noted, inter alia, that the claimant’s communication skills were average, that his written work was below average, and that he had had 35 absences in the last year.[13]The claimant exchanged emails with Ms Margo Ng of the respondent who works in Human Resources. He indicated that he was required to give four weeks’ notice, and their messages discussed a start date for him of 30 October 2023. The claimant believed that would be when he would start work for the respondent, and gave formal notice of termination of employment to his current employer (on a date not given in evidence).[14]As a part of the recruitment process the respondent requires applicants to undertake eLearning modules on a variety of policies and procedures they operate. The claimant did so between 29 September and 1 October 2023.[15]The reference was considered by Ms Fatou Sennah of the respondent, one of its Care Managers. She was concerned at its terms, and wished to meet the claimant to discuss it as she had not conducted the initial interview. She considered that communication skills both written and oral were a key aspect of the role advertised. She did so on 13 October 2023. Her concerns were in the context of the recruitment process following guidance from the Scottish Social Services Council and the Care Inspectorate as to best practice. Checking references were satisfactory was a part of that. Once all checks had been completed, if thought satisfactory the respondent’s normal process was then to issue a formal written contract of employment including a start date. Ms Ng stated “It’s great to have you on board on 30 October 2023!.....”[16]At some point during the day on 13 October 2023 the claimant sent various documents to the respondent by email including those for bank details and similar required for a new starter [the email was not before the Tribunal].[17]At the meeting on 13 October 2023, which lasted about 25 minutes, Ms Sennah asked the claimant about his work experience, and whether he would be able to undertake the role. He said that he could do so, and outlined his earlier work history. He explained that he had suffered a herniated disc, and had had surgery about three years earlier. He said that he had nerve damage. He said that he considered that he could undertake the role although it involved sitting at a desk. She had access to his CV when meeting him.[18]Having discussed matters with him she was concerned at whether the reference she obtained was satisfactory, and noted a disparity between its terms and what the claimant had told her, and that the quality of the written work in the CV was consistent with the reference. She decided that it was not a satisfactory reference, and instructed that the offer of employment be withdrawn. That was attended to by automated email sent to the claimant at 17.59 hours on 13 October 2023.[19]After receiving that message the claimant exchanged further messages with the respondent seeking to understand the decision, asking for the copy contract and to have sight of the reference. He did not have sight of the reference until provided to him as a part of the arrangements for the Final Hearing. The messages exchanged included ones on 16 October 2023.[20]The claimant commenced Early Conciliation on 14 December 2023. The Early Conciliation Certificate was issued on 16 January 2024. The Claim Form was presented on 16 January 2024. Submissions[21]The parties made brief submissions, with the claimant arguing that he had been truthful in what he said, he had been told that he could resign from his previous employer, and had done so trusting them.[22]Ms Howard made reference to a written submission she had prepared but in summary argued that the conditional offer of employment had not crystallised, and therefore that there had been no contract, no breach and there should be no remedy. She relied on the case of Wishart.
The law
[23]A claim may be made under the Employment Tribunals (Extension of Jurisdiction) (Scotland) Order 1994 for a breach of contract where that arises or is outstanding on termination, as referred to above. Whether or not a contract was formed between the parties is dependent on whether agreement existed between the parties or not – Morrison-Low v Paterson 1985 SC (HL) 49. The issue is decided objectively, such that whether or not a party intended to enter into a contractual relationship is not relevant. An expression of future intention is not sufficient, nor is there a contract if it does not include the essential requirements of a contract, or if there is an agreement to agree unless that is sufficient, or can be remedied by an implied term – Avintair Ltd v Ryder Airline Services Ltd 1994 SC 270.[24]In Wishart v National Association of Citizens Advice Bureaux Ltd [1990] IRLR 393, an interim injunction was sought by the claimant who had been offered a post 'subject to receipt of satisfactory written references'. When these were taken up they disclosed absence for reason of illness on a number of occasions and the defendants withdrew the offer of employment after having discussed the position with the claimant. The Court of Appeal held that there was no established employment relationship between the parties, and it was evident that the defendants did not have trust and confidence in the claimant with the result that the Judge had erred in treating the case as an exception to the normal rule whereby the Courts did not order specific performance of contracts of employment. Two members of the Court of Appeal expressed the view that in the context of the question of whether there is an enforceable contract of employment between the claimant and the defendant, it was highly unlikely that the claimant would succeed at trial in establishing that there was an objective test involving a notional reasonable prospective employer for determining whether a reference is satisfactory, and it was more likely that all that was required was that the defendants consider the references in good faith.
Discussion
[25]I considered that the witnesses each sought to give what they considered to be honest evidence. There was not a large dispute on fact, but where there was I preferred the evidence of Ms Sennah. She was very clear in her oral evidence, and explained the process that the respondent follows in its recruitment, that written communication skills were important for the role advertised, as the person was the first point of contact including for service users, and that she had concerns over the terms of the reference describing the claimant’s written work as below average. She also had his CV which has various errors or infelicities of expression within it. She also noted that his oral communication skills were rated as average in the reference, but was another key aspect of the role. Her view was that, having met him, the reference received was not satisfactory, and she withdrew the offer as a result. All of that evidence I considered reliable.[26]The claimant put to her in cross examination that her only concern was that he had had 35 days of absence, but she did not accept that, and was adamant that she had concerns over his communication skills particularly those in writing. I was satisfied that her evidence on that should be accepted. I was also satisfied that she genuinely believed that the claimant’s reference was not satisfactory, and came to that view after having a meeting with him which gave him the opportunity to persuade her that it was. The act of her holding that meeting supports the view that she was genuinely of that opinion, in my assessment. She would not have done so in my view if she had not genuinely wished to find out if he was able, in her opinion, to undertake the role.[27]It follows from the findings I have made that I consider that the conditional offer was not completed, or the offer not crystallised as Ms Howard put it, such that there was no contract in law between the parties. The offer made was accepted, but had been made with conditions and one of them had not been satisfied. The acceptance was not therefore sufficient to conclude a contract. The offer was withdrawn on that basis, as in my view the respondent was entitled to, the condition of a satisfactory reference not having been fulfilled..[28]The claimant thought that there was a concluded contract, because he had been told about a start date, but the letter to him of 26 September 2023 was I consider clear that it was conditional, using that word in the heading, and at no stage was he told that the conditions, referred to in the letter as checks, had been successfully completed. He accepted that he had been advised by Ms Ng something to the effect that he could resign from the existing employment, rather than instructed to do so, and it did not appear to me that that was a basis to find that a contract of employment existed in law. The test is an objective one, not a subjective one.[29]I did not find assistance from the case of Wishart. The context of that was an application for an interim injunction in England. The law to be applied to a contractual issue such as the present is the law of Scotland, which I consider is as set out above.[30]The other aspect that the claimant sought to rely on was that he had spent time reviewing the respondent’s policies by eLearning, as required, and should have been paid to do so. Ms Sennah explained that that was required of candidates at the recruitment stage, and was not paid. The claimant accepted that he had not been told by the respondent that it would be. His evidence was that he had been paid in other applications, but that experience is not sufficient in law to create a binding legal obligation in my opinion, either under contract or otherwise.[31]I conclude accordingly that the claimant has not established that there was a concluded and binding contract with the respondent, albeit that he himself believed genuinely that there had been. The answer to the first issue is in the negative, and issues two and three do not therefore arise.[32]In the absence of there being any contract between the parties, or other basis for a legal obligation, I must dismiss the Claim. Employment Judge A Kemp
Introduction
[1]A Judgment dated 4 April 2024 was issued to the parties in this case on 5 April 2024 which held that there had not been a contract between the parties, and dismissed the Claim.[2]After the Judgment was issued, the claimant made an application for expenses under Rule 76 by email sent on 1 May 2024. It referred to what was described as a costs warning letter sent to the claimant on 26 March 2024. It stated that the claim was “misconceived” and referred to it as “spurious”. It offered the claimant £250 subject to a COT3 and if not accepted it stated that the respondent reserved the right to bring it to the E.T. Z4 (WR) Tribunal’s attention and to seek costs (expenses) from the expiry of the offer being at 5pm on 27 March 2024.[3]The respondent also provided with the email applying for expenses what it termed a Schedule of Costs for the expense of defending the claim, part of which is for the period after 27 March 2024.[4]The claimant replied on 8 May 2024 stating his position, which included that he had not seen the email of 26 March 2024. It was taken as opposition to the application. The present hearing was fixed so that both parties could set out their respective positions. Submission for respondent[5]The following is a very brief summary of the submission made, which was based on the terms of the email making the application. The claim put forward had no prospect of success. An email had been sent to the claimant warning as to expenses on 26 March 2024 and making an offer to settle the claim, but the claim proceeded in the face of that. The reference at the heart of the case had been provided in the Bundle of Documents sent on 26 March 2024. The claimant had been aware of its terms, and that the respondent considered the reference not to be satisfactory. The Response Form had made clear that there was no jurisdiction for parts of the claims made, and that there had been a conditional contract where the condition, in relation to the reference being satisfactory in the opinion of the respondent, was not fulfilled. An award of expenses should be made. Submission by claimant[6]Again the following is a very brief summary of the submission. The claimant argued that he had not been unreasonable. He explained his position in relation to the offer, which he thought was one he had accepted, and that he had a job to go to with the respondent. He had resigned from his last position, had communicated with HR of the respondent (emails as to which he had provided to the Tribunal), and had completed a blank form. He had not seen the email offer. On receiving the Bundle, which he accepted included the reference and was sent to him on 26 March 2024, he had little time before the Final Hearing. He suffers from PTSD and anxiety, and finds taking decisions quickly difficult. He provided details of his financial circumstances as I had asked of him, as that was required under Rule 84 if an award was made. Law[7]Rule 2 of the Rules found in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”) provides as follows;- “2 Overriding objective The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”[8]Rules 74 - 77 provide, so far as relevant to this case, as follows: “Definitions(1) ‘Costs’ means fees, charges, disbursements or expenses incurred by or on behalf of the receiving party (including expenses that witnesses incur for the purpose of, or in connection with, attendance at a Tribunal hearing). In Scotland all references to costs (except when used in the expression ‘wasted costs’) shall be read as references to expenses.(2) ‘Legally represented’ means having the assistance of a person (including where that person is the receiving party's employee) who— (a) has a right of audience in relation to any class of proceedings in any part of the Senior Courts of England and Wales, or all proceedings in county courts or magistrates' courts; (b) is an advocate or solicitor in Scotland; or (c) is a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland.(3) ‘Represented by a lay representative’ means having the assistance of a person who does not satisfy any of the criteria in paragraph (2) and who charges for representation in the proceedings. Costs orders and preparation time orders (1) A costs order is an order that a party (‘the paying party’) make a payment to— (a) another party (‘the receiving party’) in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative; (b) the receiving party in respect of a Tribunal fee paid by the receiving party; or (c) another party or a witness in respect of expenses incurred, or to be incurred, for the purpose of, or in connection with, an individual's attendance as a witness at the Tribunal…… When a costs order or a preparation time order may or shall be made (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success ……….. Procedure A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application.”[9]The basic position on expenses is summarised in Employment Tribunal Practice in Scotland paragraph 12.01 as follows: “The concept underlying expenses in the employment tribunal has always been that a person who, in good faith, considers that they have a good claim or defence, should not be inhibited from taking or defending proceedings for fear of liability for expenses and, therefore, that tribunals should not normally award expenses.”[10]That expenses are not normally awarded in the Employment Tribunal has been addressed in a number of cases including Gee v Shell UK Ltd [2003] IRLR 82. Expenses may however be awarded if to do so falls within the terms of the Rules. It is an exercise of discretion which includes taking into account the overriding objective in Rule 2. In Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78, the Court of Appeal stated, in the context of conduct of the case: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had”.[11]Costs is the term for expenses used in England. That the Tribunal has a wide discretion was confirmed in FDA v Bhardwaf [2022] EAT 97. An award of expenses made by a Tribunal in Scotland was upheld by the EAT in Burns v Carrie EATS/0085/04 on the basis that the claim was wholly misconceived and never had any reasonable prospects of success. The fact that a party acts for him or herself, a party litigant in Scotland and a litigant in person in England, is a factor that may be taken into account - AQ Ltd v Holden [2012] IRLR 648 but will not necessarily prevent the award being made Vaughan v London Borough of Lewisham [2013] IRLR 713.
Discussion
[12]I considered that it was not in accordance with the overriding objective to make an award of expenses. Whilst the respondent’s solicitors sent an offer to the claimant that was in the circumstances entirely reasonable, it did not seem to me that the fact of such an offer made making an award necessary. All the circumstances require to be considered. Separately whilst I have found for the respondent, essentially for the reasons that they gave, that does not mean that pursuing the claim was unreasonable in the sense used in the Rule.[13]Firstly the claimant said that he had not seen the email offer. Whilst I did not hear evidence on oath, I had stated that the claimant was giving genuine honest evidence in the Final Hearing within the Judgment, and it did not appear to me that there was a basis to form a different conclusion in this respect. I accept that the respondent sent the email, and that it was to the correct email address, but there was no read receipt or similar evidence put before me. There was no response rejecting the offer. There was no evidence of the matter being followed up with him, by a form of reminder for example, or confirmation that the offer had been not accepted timeously and that expenses were therefore being sought.[14]But that was not the only basis on which the respondent put its case. It argued that from the Response Form, as well as the documents in the Bundle sent to the claimant on 26 March 2024, that it was obvious that the claim would not succeed. They argued that it was misconceived, in part outwith the jurisdiction of the Tribunal, and that it was unreasonable to pursue it. They noted that the claimant had been provided with the reference that the respondent had considered not satisfactory or suitable with that Bundle, and the terms of his email of 8 May 2024. I address that further below.[15]Secondly the claimant is a party litigant. What is obvious to a solicitor is not so obvious to someone not legally qualified. He thought that from matters such as being given at least a notional start date, and what he said was a blank document to complete with information such as bank details, as well as emails sent to him by HR of the respondent (not all of which were before me for the Final Hearing but which he sent to the Tribunal for this hearing), and that he had resigned from his last position believing that he had a new contract with the respondent, that he did have a contract. That was not correct, for the reasons found in the Judgment, but it appears to me that the claimant’s position was not so unreasonable that an award of expenses is appropriate on the basis that the claim was, and always was, misconceived.[16]If the position was as clear and obvious as is being proposed, one wonders why the respondent called the witness they did. That they did so (for entirely appropriate and understandable reasons) indicates to me that the matter was contentious to a degree at least, and required that evidence to be heard. The questions included whether the reference had been regarded as satisfactory, and whether that was permissible. If, as discussed during the hearing, the reference had been glowing and unconditional in its support, that would not have been a basis not to proceed with the offer. The claimant cross-examined Ms Senna, again entirely appropriately, on her reasons for not proceeding, and I found after his having done so that her evidence was to be preferred, but that is a finding after hearing all the evidence. In my view that is the answer to the point that the reference was provided to the claimant on 26 March 2024. It was, but issues that the claimant could and did raise about it remained.[17]Thirdly English is not his first language. Whilst he has a reasonable command of English, it is not perfect. Indeed it was the part of the reference in relation to communication that was important in the decision of the respondent not to proceed with employing him. Whilst the claimant did not believe that the reference was correct and fair, the importance of communication to the role was a matter on which I accepted the witness’s evidence for the respondent.[18]Fourthly he genuinely believed that he had been made an offer (as the Judgment itself referred to) and whilst I considered that he was wrong in that, it did not appear to me that that was itself a basis for holding his pursuit of the claim unreasonable. Whilst some of the claims were indeed outwith jurisdiction, such as that in relation to a subject access request, it is not always obvious to a party litigant, particularly someone with English not the first language, that that will be the case. I accept that the claimant sought to remedy a matter that had caused him loss as he had resigned his former post, and did what he could when framing the Claim. The hearing in effect proceeded on the basis of a claim of breach of contract, that being the issue on which the Tribunal did have jurisdiction. In that, one issue was the eLearning that the claimant carried out as part of the process of his application for the role. He said in evidence that that had been paid in other situations, but he accepted that no specific agreement to do so had been made with the respondent. That he accepted that was to his credit, and confirmed my impression that he was seeking to give honest evidence, and whilst his understanding of what may constitute a legal obligation is incomplete, that is in the context of the partly litigant and circumstances I have described. It does not follow that it is unreasonable given all the circumstances.[19]Finally, whilst he said in his 8 May 2024 email that if he had been provided with the reference prior to the claim he would not have proceeded with it, or words to that effect, and he had seen the reference in the Bundle sent on 26 March 2024, such that he had about a week to consider it, his view was that the reference was not so obviously unsatisfactory that it was the basis to withdraw the offer, and he cross examined on that general basis. He said that he suffered from PTSD and anxiety and found taking decisions quickly difficult. It was not beyond argument that the reference was not one that would lead to the offer being withdrawn. It had some aspects supportive of the claimant, and others that were at least partly not so. I held, as indicated above, that his position about the reference was not the one to uphold, and I preferred the evidence of the witness on that, but his position was not one that I consider, overall and in all the circumstances of the case, amounts to what is unreasonable under the terms of the Rule.[20]For these reasons, whilst I understand the respondent’s sense of frustration that they set out their position clearly in the Response Form, and sought to resolve matters with an offer, all of which was reasonable, that is not the test. It is whether or not the claimant had acted unreasonably in bringing and pursuing the claim. The circumstances of the present case are very far away from those in which awards of expenses have been made. Whilst each case depends on its circumstances I considered that this case was not one which was appropriate for such an award.[21]I refused the application for expenses accordingly.