Mr K Osbourne v Manchester University NHS Foundation Trust: 6018681/2025
REASONS
[5]The claim is for breach of contract. The claim made is for breach of contract. The respondent disputes the claim and argues that it was not in breach of contract. Issues[6]The issues in this case are as follows:(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 on 3 February 2025)?(iii) If the answer to both of the foregoing issues is yes, what losses did the claimant suffer from that breach?The Law
[7]The Tribunal has to have regard to the following provisions of the law: Article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.[8]The test for deciding whether a reference meets an employer’s requirements is a subjective one. In Wishart v National Association of CAB [1990] IRLF 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.Facts
[9]I have not referred to every piece of evidence in the 265 page bundle, and each part of the witness statements, but that does not mean it has not been considered.[10]The relevant facts are as follows: 2 of 6[11]The claimant had applied for the role of physiotherapist role advertised by the respondent. He was interviewed on 5 November 2024. The appellant was unsuccessful at interview for the permanent position as another candidate scored higher than the claimant. The claimant was however found to be appointable. There was an Occupational Therapist vacancy which the respondent had not been able to appoint to. This post was converted into a fixed term physiotherapist post. The appellant was offered this role verbally on 7 November 2024.[12]The claimant was sent a conditional offer of employment on 14 November 2024 (page 62-66). The offer of employment was conditional on a number of checks, one of which was “Employment history and reference check”. The offer letter stated: “Your starting arrangements and contract of employment will only be confirmed once these checks have been satisfactorily completed”.[13]The claimant accepted the conditional offer on 15 November 2024. He provided details of referees for the last three year’s work as required by the respondent (pages 71-78). There was some confusion over the dates of the claimant’s previous employment as stated by the claimant compared to the dates given by the referees. This was queried by the respondent and resolved following contact with the claimant and the referees.[14]The claimant had previously worked for the respondent as a permanent employee and as a locum. The claimant did not state that this locum work had been for the respondent when the claimant provided his employment history to the respondent. The claimant provided the name of Jennifer Dunn who had been his manager when he worked in his permanent role for the respondent. She did not reply to a written reference request. The claimant proposed a different referee, Magdalena Lipkowska on 15 January 2025.[15]While the respondent was conducting pre employment checks for the claimant, Jennifer Dunn, who had managed the claimant in his permanent position, and Laura Mason, who had managed the claimant in his locum role, both expressed verbal concerns over his performance when he had previously worked for the respondent in a permanent and in a locum capacity. This was after they became aware an offer of conditional employment had been made to the claimant. The concerns related to the claimant’s whereabouts during working hours, and concerns about the high number of community patients who were not available when the claimant called to visit them (non responses). Ms Dunn had not raised these issues with the claimant as he resigned from the respondent’s employment.[16]Ms Mason expressed verbal concerns about the claimant’s performance, attitude and behaviours, and non responses from clients in the community during the time she managed him in his locum position.[17]A form was completed on 30 January 2025 (pages 125-128) which set out a summary of reasons for considering withdrawal of the offer of employment to the claimant. This said it was due to the fact that some of the references were not detailed, concerns over employment and work dates, and concerns over 3 of 6 references from internal managers. It was confirmed by the witnesses that the offer was withdrawn for the last reason, namely the verbal references.[18]Gabriella Farrell, Team Lead Physiotherapist, who had originally interviewed the claimant, called him on 3 February 2025 to explain that the job offer was being withdrawn. This was confirmed in writing on 6 February 2025. Determination of the issues[19]Mr Coleman for the claimant said that the respondent had not followed the References Guidance (pages 178-219). This says that verbal references should not be provided, and concerns that have not been raised with a person should not be included. I find that this is internal guidance, and a failure to follow the guidance set out in the document did not mean the respondent had committed a breach of contract when it was not followed.[20]Mr Coleman noted that the inconsistency in the dates of employment had been reconciled in discussions with the referees and the claimant. The respondent should have done this in relation to any performance issues. I find there was no contractual obligation on the respondent to do this. This was a matter for its discretion.[21]Mr Coleman points out that the discrepancy in the dates of the claimant’s previous employment was resolved. However, the respondent had other concerns as to the claimant's performance during his previous work for it in a permanent and locum capacity.[22]I note that Jennifer Dunn provided some incorrect information about the claimant’s previous dates of employment with the respondent. I found that this was reasonable given some time had passed. The claimant himself confused the previous dates of his employment and work when he provided this information to the respondent.[23]The fact that Jennifer Dunn said that it had been a pleasure working with the claimant in his leaving card did not persuade me that she had no concerns over his performance.[24]I found the respondent’s witnesses to be credible. I find they had concerns over the claimant’s previous employment and work for the respondent after verbal discussions with the claimant’s former managers. I find the respondent genuinely believed that the information provided by Jennifer Dunn who the claimant had provided as a referee, and Laura Mason, was not satisfactory. The respondent came to that view after having spoken verbally to both of them. The fact the information was relayed verbally rather than in writing does not mean that the respondent was unable to rely on it when conducting its pre employment checks on the claimant. Rule 41 of the Tribunal Rules 2024 allows the Tribunal to admit hearsay statements in order to determine the facts and the areas of contention that lie behind those facts.[25]Given the unsatisfactory references, the conditional offer of employment was not completed, or crystallised, such that there was no contract in law between the parties. The offer made was accepted, but it had been made with conditions 4 of 6 and one of them had not been satisfied. The acceptance was not therefore sufficient to conclude a contract. The respondent was entitled to withdraw its offer on the basis that the condition of the receipt of satisfactory references had not been fulfilled. This was despite the fact that the claimant had provided some good references.[26]The offer of employment on 14 November 2024 was clear that it was conditional on “the satisfaction of pre employment checks” which included a reference check. The letter continues that “Your starting arrangements and contract of employment will only be confirmed once these checks have been satisfactorily completed”. The offer was not an unconditional offer. This is understandable given the nature of the role in question – physiotherapist at an NHS body.[27]At no stage had the claimant been told that the conditions, referred to as "checks", had been successfully completed. The test on whether the references are satisfactory is an objective one, not a subjective one (Wishart considered).[28]The claimant sought to rely on the fact that the references from the appellant’s managers were verbal, had not been put to the claimant, and the discrepancy on the dates of his previous work had been resolved. These assertions do not mean that the respondent could not rely on the verbal information provided by the claimant’s former managers. There was no legal obligation on the respondent to put their concerns to the claimant or to have the references in writing. The respondent made a conditional offer of employment to the claimant and one of the conditions was not satisfied. In the circumstances it had the right to withdraw the offer of employment. It follows from the findings I have made that I consider that the conditional offer was not completed. 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. I find it does not matter that the reference was verbal rather than written.[29]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.[30]In the absence of there being any contract between the parties, or other basis for a legal obligation, I must dismiss the Claim