Mrs K Hardy v Roslin Cell Therapies Ltd: 8002679/2025
JUDGMENT
The judgment of the Employment Tribunal is (First) That, the claimant lacks Title to Present and the Tribunal lacks Jurisdiction to Consider, in terms of section 3(2) of the Employment Tribunal’s Act 1996 and of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994/1624 Article 3, the claimant’s claims for damages for Breach of Contract. (Second) That the claimant’s claims are dismissed for want of jurisdiction.REASONS
[1]This case called for final hearing in person at Edinburgh on the 9 and 10 April 2026. The claimant appeared in person. The respondent company was represented by Mr Benjamin of Counsel.[2]The case is one on which the claimant seeks to invoke the Tribunal’s contractual jurisdiction arising in terms of section 3(2) of the Employment Tribunals Act 1996 which is in the following terms:- “(2) Subject to subsection (3), this section applies to—(a) a claim for damages for breach of a contract of employment or other contract connected with employment,(b) a claim for a sum due under such a contract, and(c) a claim for the recovery of a sum in pursuance of any enactment relating to the terms or performance of such a contract, if the claim is such that a court in England and Wales or Scotland would under the law for the time being in force have jurisdiction to hear and determine an action in respect of the claim.”[3]That extension of jurisdiction is given effect to in terms of the “Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994/1624 Article 3” which is in the following terms:- “3. Proceedings may be brought before an [employment tribunal] in respect of a claim of an employee for the recovery of damages or of any other sum (other than a claim for damages, or for a sum, in respect of personal injuries) if—(a) the claim is one to which section 131(2) of the 1978 Act applies and which a court in Scotland would under the law for the time being in force have jurisdiction to hear and determine;(b) the claim is not one to which article 5 applies; and(c) the claim arises or is outstanding on the termination of the employee’s employment.” The Issues. A preliminary issue reserved for determination at final hearing on a proof before answer basis. (First) Was there in existence between the parties, as at 21 August 2025 being the date upon which the respondent terminated the relationship with the claimant, a contract, such as to create an employment between the parties and thus, has the claimant Title to present and has the Tribunal Jurisdiction to Consider, her complaint of breach of contract, in terms of section 3(2) of the Employment Tribunals Act 1996 and Article 3(c) of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994, SI1994/1624. (Second) Let it be assumed that the Tribunal has jurisdiction, did the respondent in purporting to withdraw its updated “offer” on 21 August 2025, act in breach of contract. (Third) Let it further be assumed that the respondent in so purporting to withdraw the offer did act in breach of contract, which of the asserted heads of loss which are itemised by the claimant at section 9.2 of her initiating application ET1 flowed from (were caused by) that breach of contract and were reasonably foreseeable to the respondent at the time of the contract’s constitution. (Fourth) Let it further be assumed that some result in causative loss is established, what is the appropriate measure of damages in contract for such loss. Sources of documentary and oral evidence[4]There was before the Tribunal a principal and a supplementary joint bundle of documents extending to 315 pages of which the last five pages were added, of consent of parties, on the second day of hearing, and to some of which the Tribunal was referred in the course of evidence and submissions.[5]The claimant Mrs Hardy gave evidence on her own behalf. For the respondent, the Tribunal heard evidence from Mr Peter Coleman the Chief Executive Officer of the respondent company. The witnesses gave evidence respectively on oath and on affirmation. Findings in fact[6]On the oral and documentary evidence before it and upon consideration of the submissions made by parties, the Tribunal makes the following essential findings in fact restricted to those relevant and necessary to the determination ofThe Issues.
[7]The respondent is a limited company, which operates to develop and manufacture cell and gene therapies. In 2025 the respondent’s Chief Executive Officer, (“CEO”), Mr Peter Coleman, identified a requirement to create and fill the post of Chief People Officer.[8]As Chief Executive Officer Mr Coleman discharges full responsibility for the running of the business. His appointment of CEO reports to a Board of Directors and to the Executive Chair of that Board.[9]The company’s Chief Operating Officer (“COO”) and its Executive Management Team including the Chiefs of its various departments all report to the CEO Mr Coleman. Mr Coleman’s intention was to create a post, of “Chief People Officer”, at the executive management level, to provide appropriate level support both to his own function and to that of the Chief Operating Officer, and, where appropriate, to the Board.[10]The respondent engaged with a recruitment agency “Kleboe Jardine”, briefing them about requirements of the role with the brief that they identify, triage and vet potential suitable candidates ultimately referring to the respondent those candidates who in the assessment of the recruitment agency were suitable candidates, to enter a shortlist interview, assessment and consideration process.[11]The recruitment agency had the respondent’s authority to engage with a potentially suitable candidate, to share with them the respondent’s aspirations for the role, the potential brackets of remuneration and benefits, to obtain notes of referees and to take up references from referees of potential candidates for subsequent consideration by the respondent, in the case of candidate referred by them to the respondent, and to act as a conduit of communication between potential candidates on the one hand and the respondent on the other.[12]The assessment process through which shortlist candidates were to transition, involved a number of remote meetings (interviews) with key personalities within the respondent’s organisation, including the CEO and Chairman of the Board, onsite visits and meetings with members of the respondent’s Executive Management Team, all for the purposes of the mutual assessment of both parties respectively of the claimant’s suitability as a candidate for the post by the respondent, and the suitability of the post for her on the part of the claimant.[13]Within the respondent’s organisation, the respondent’s Talent Acquisition Manager, Emma Stevenson, had the respondent’s Actual Authority to agree to a variation of start date on the respondent’s behalf. Separately the respondent held Emma Watson out to the claimant as a person having that authority, and she accordingly had the respondent’s ostensible authority to do so.[14]Notwithstanding the authority of the recruitment company to act in the process of sourcing and initially assessing the suitability of candidates, and of Emma Watson to communicate on behalf of the respondent, the only person within the respondent’s organisation who had the authority to agree to employ a potential candidate was the respondent’s Chief Executive Officer Mr Peter Coleman.[15]It was with Mr Coleman, and only Mr Coleman, that the ultimate authority to commit and bind the respondent under a contract of employment with any identified suitable candidate sat. It was on the authority of Mr Coleman alone that any offer to employ on particular terms could be made, albeit that he might delegate the communition of that decision, once made by him, to another person.[16]The claimant applied for the role of “Chief People Officer” via the recruitment agency Kleboe Jardine.[17]The claimant progressed through various stages of assessment prior to 11 August 2025.[18]On or about 11 August 2025 the third party recruiter communicated verbally to the claimant that the respondent had decided to make an offer to her at a salary of £150,000 and that a written offer would follow. The claimant for her part communicated to the third party recruiter, authorising him to relay the same to the respondent, that for her part the proposed salary would be acceptable and on 13 August 2025 the respondent’s Peter Coleman sent an email to the claimant confirming that he was preparing a letter of offer to be sent to her.[19]On 14 August 2025 the respondent communicated an offer in writing to the claimant through the mechanism of sending to her an email which contained a link to the respondent’s platform through the clicking of which the claimant was able to access the offer documents.[20]The totality of the offer is contained within three documents, all of which were accessed by the claimant via the respondent’s platform and which comprised(a) a letter signed by Peter Coleman CEO dated 14 August 2025 and addressed to the claimant (page 79 of the joint bundle),(b) a schedule containing a statement of terms of employment including, amongst others, specification of the salary of £150,000 per annum and a start date of 1 September 2025 (page 80 of the joint bundle).(c) A three page document headed “Offer of Employment – Kerry Hardy (pages 76, 77 and 78 of the bundle) which three pages, to an extent, duplicated some of the terms of employment set out in the schedule to the 14 August 2025 letter but also incorporated additional detail not set out in the schedule, or in the 14 August letter.[21]The terms of the 14 August letter were as follows:- “Dear Kerry, Chief People Officer Following your recent interview, I am delighted to confirm the offer of a permanent appointment to the post of Chief People Officer with Roslin CT. This offer is made in accordance with the conditions set out in the enclosed schedule and is subject to the successful completion of several checks, including verification of your address, criminal record, references, identity, qualifications, and satisfactory completion of an occupational health questionnaire confirming your fitness to work. Additionally, proof of your eligibility to work in the UK is required. Should any of these checks, including references, not meet our satisfaction, the offer may be withdrawn. Once all requirements have been met, we will send your contract of employment for signing. In the meantime, if you have any questions, please do not hesitate to contact me. Yours sincerely Peter Coleman Chief Executive Officer.”[22]Taken together the communicated documents at pages 76 to 82 of the joint bundle constituted an offer, on the part of the respondent to contract on stated terms which included a suspensive condition being the successful completion …. to the satisfaction of the respondent of the various checks itemised, including references, coupled with a unilateral voluntary obligation on the part of the respondent to restrict what would otherwise be their right to withdraw the offer at any point prior to its acceptance, to a resolutive condition being the occurrence of the contingency “should any of these checks including references not meet our satisfaction, the offer may be withdrawn.”[23]The terms of the offer set out at page 77 of the joint bundle include the communication under the heading “Next steps” as follows – “If you choose to accept, please click ‘sign and accept offer’ at the bottom of this email and you will be sent an email detailing the next steps we require you to complete as part of the onboarding process. Once all pre-employment checks are completed,” [to the satisfaction of the respondent], “we will issue your contract of employment for signing. This will be sent to you via email and you can sign this online.”[24]On 14 August 2025, the claimant followed those steps purporting to accept the offer. In so doing she communicated her rejection of the proposed start date of 1 September and proposed an alternative start date of 6 October (page 78 of the joint bundle) viz:- “Response Kerry Hardy Hi Emma I confirm receipt of the offer and confirm my acceptance, but I am unable to commit to the 1st of September as a start date. Ideally, 6th October as I have a lot to get sorted before I join, including finding a home in the area. Kerry”[25]The action executed by the claimant of clicking the “signed and accept offer” button generated a receipt showing the claimant’s signature and the time and date at and on which it was adhibited, of 19:33 on the 14 August 2025 (page 277) of the joint bundle.[26]When purporting to accept the offer while rejecting the start date of 1 September and proposing an alternative start date of 6 October, the claimant communicated a “qualified acceptance” by the issue of which the respondent’s offer of 14 August fell and was no longer available for acceptance.[27]The verbal communications which proceeded via the intermediary of a third party recruiter on or about 11 August did not constitute (result in) a mutually binding contract between the parties.[28]The claimant’s communicated qualified acceptance of 14 August 2025 did not meet the respondent’s written offer of that date and that offer and that purported acceptance did not constitute (result in) a concluded binding contract between the parties.[29]On 15 August 2025 Emma Stevenson, the respondent’s Talent Acquisition Manager wrote by email to the claimant, with the authority of the respondent, stating “I can confirm Peter is happy with Monday 6 October. I’ll send you an updated offer letter to confirm your revised start date. …”[30]The claimant, for her part did not have any concerns about the completion of the various checks or about the likely quality of her references and therefore, upon receipt of Emma Stevenson’s email of 15 August, felt confident that and believed that the process in which she and the respondent were engaged, was one which would lead through the process set out in the offer of 14 August, to the issue of a contract of employment for signature by both parties.[31]The claimant had been engaged in a parallel recruitment process with a different potential employer in which she had reached the stage of being identified as one of three final candidates.[32]On or about 11 August and based upon the verbal communication to her by the third party recruiter of the salary at which the respondent intended to make her an offer, which salary she found acceptable, the claimant took the decision to withdraw, and withdrew, from the interview process with the alternative employer without participating in the last round of interview/selection process.[33]On 20 August 2025 at 8:46 am, the respondent’s Emma Stevenson sent an electronic communication to the claimant in the following terms:- “Hi Kerry thank you. Please see attached your updated offer letter reflecting the correct address and revised start date. Have you received the updated link from Zinc to start your background checks? Any questions please let me know. Kind regards, Emma.”[34]A screenshot of the communication of 20 August 25, showing the date stamp and time of 20 August at 8:46, is produced at 311 of the bundle and a clean copy at 312. Each screenshot shows the existence of an attachment which has the title “Offer-of-employment-Kerry-Hardy.pdf”. The screenshots are produced without an opened copy of the attachment.[35]The claimant replied to that communication at 8:55 on 20 August 2025 (page 311 of the bundle) in the following terms:- “Good morning Emma thank you for your email. Yes, I have received emails regarding the checks. I will aim to complete before the end of the week. Regarding references the recruiter has advised me they are taking them up and will pass them on to Roslin. Again, I think they are aiming to close this off by the end of the week. Kerry”[36]It was the evidence of the claimant that she had at some point accepted the updated offer utilising the same mechanism which she had in respect of the original offer which was communicated to her on 14 August 2025.[37]On the first day of hearing the claimant’s position in evidence was that she had received the updated offer and had accepted it by clicking on the accept and sign button on 15 August.[38]On the second day of hearing the claimant’s position in evidence, the document at page 311 having been produced by the respondent overnight, remained that she had signed and accepted the updated offer while also accepting, standing date and time marking on the screenshot at page 311, that she could not have done so before 20 August at the earliest.[39]The respondent, for its part, was unable to produce a copy of the attachment to the communication which appears at page 311 (“the updated offer letter”) or a receipt showing a further signature of the claimant post that of 14 August 2025.[40]At page 81 of the bundle there is produced a second copy of the letter dated 14 August 2025, which is produced at page 79, but with its incorporated conditions at page 80.[41]The second letter of 14 August 2025 (at page 81 of the bundle) is identical in its terms to the first such letter (at page 79), but the schedule of conditions attached to (appearing on the reverse side of the second letter, at page 82 of the bundle) reflect the terms of the updated offer that is to say they show a start date of employment as Monday 6 October 2025.[42]By the 20 August 2025 the claimant had completed all but two of the checks referred to in the offer. The two checks outstanding as at that date were firstly the provision of vouching copies of the claimant’s qualifications and secondly the completion of an Occupational Health questionnaire.[43]Each of the above were matters which were subject to the suspensive condition contained within the renewed and updated but still “conditioned offer” of 20 August 2025.[44]The Occupational Health questionnaire was not sent by the respondent to the claimant until 08.53 hrs on 20 August 2025 (page 89 of the bundle). The claimant had not had a reasonable opportunity of completing and returning the questionnaire prior to the events of 21 August 2025.[45]By email dated 20 August 2025 at 17:15 (page 305 of the bundle) the respondent’s Emma Stevenson, with the authority of the respondent, extended the period for submission by the claimant of evidence of her qualifications by 14 days until 3 September 2025.[46]The duties of the post of Chief of People required to be substantially discharged onsite and, in the case of the claimant, taking up the post involved the requirement that she relocate from her then place of residence in Morpeth to the Edinburgh area.[47]Following the verbal communication via the third party recruiter of 11 August 25, the claimant commenced the search for suitable alternative accommodation, in the first instance rental accommodation, to which she could relocate with her family.[48]The claimant travelled, on three occasions from her home to Dunbar/North Berwick by car to view potentially suitable properties.[49]Notwithstanding the process of issuing to the claimant firstly the offer of 14 August and the subsequent agreement to a later start date for employment the respondent’s Chief Executive Officer, who was the only individual within the respondent’s organisation with the authority to take the ultimate decision to employ or not employ the claimant, had a number of matters in respect of which he wished to be sure that the claimant understood the position of the respondent in the context of what appeared to be her expectations around bonus and equity and potential part-time working amongst other matters, and for his part to be satisfied, upon consideration of the claimant’s clarification of her understanding and position and upon a final consideration that the claimant would be a suitable fit for the job and, subject to the purging (fulfilment) of the specified resolutive condition, that the respondent should enter into a Contract of Employment with the claimant through the final stage of the process specified by the respondent in each of its conditional offers, of sending to the claimant a written Contract of Employment document to be signed by her and on behalf of the respondent.[50]There had also arisen, and he was in the process of addressing, an internal issue of perceived precedence which might result in the advertised job title of “Chief People Officer” having to be revised albeit that the other terms and conditions on which employment was proposed would remain the same. He was unsure of what impact, if any, that would have on the claimant’s desire to accept the appointment and wished to sound her out on that matter.[51]On 19 August 2025 the claimant and the respondent’s Chief Executive Officer had a telephone conversation.[52]The claimant has produced at (page 100 of the bundle) a note generated by her of the matters discussed between her and the respondent’s CEO on the telephone call of 19 August 2025.[53]Mr Coleman accepted in evidence that the first 10 paragraphs of the note prepared by the claimant were accurate in so far as they went, but that omitted from the claimant’s note was his concluding statement that he was of the view that the claimant for her part and he for the respondent’s part were not yet “in alignment” in relation to the post and that he would require to reflect further on the position.[54]The claimant’s position in evidence was that she did not recall Mr Coleman making any such statement at the end of the telephone call.[55]Without explaining the internal reasons behind his needing to do so, Peter Coleman asked the claimant how important the job title of “Chief of People Officer” was to her and was it something that might be “a deal breaker” for her or, was she like him someone who was less concerned about matters such as a job title than about more important details such as salary and responsibilities etc.[56]The claimant responded to the enquiry by confirming that the job title of Chief of People Officer was something that was very important to her.[57]Although not expressly asking the claimant to consider a change in job title at that point, Peter Coleman formed the view that the claimant would be unlikely to agree to a change of job title should he find himself in a position where, for internal reasons, he required to propose the same.[58]The claimant’s position in evidence was that at the end of the call she believed that all outstanding matters had been addressed to her satisfaction with the exception of the completion of the Occupational Health questionnaire, which at that point, she had not yet received from the respondent the provision of references which she believed was being taken forward by the third party recruiter and, the provision by her of vouching of her qualifications in respect of which she received, on the following day 20 August, a 14-day extension from the respondent’s Talent Acquisition Manager.[59]On 21 August 2025 at 9:45 the respondent’s CEO wrote to the claimant in the terms set out at page 92 of the bundle, viz:- “From Peter Coleman peter.coleman@roslinct.com Date, 21 Aug 2025, 09:45 Subject CPO role To: Kerry Hardy hardy.kerryann@gmail.com Hi Kerry Thank you for the call on Tuesday, I think it was important for us to talk 1 to 1. On reflection, it was clear to me that we are not fully aligned on a number of issues we discussed. And I don’t believe that we will be able to come to a mutually agreeable position. Therefore, regrettably I have decided to withdraw the offer. I really appreciate the interaction and the time you have taken to come to Edinburgh and I would like to wish you all the best in your future career. Regards Peter Peter Coleman CEO”[60]The claimant responded at 9:59 on 21 August asking the respondent’s CEO to call her.[61]There then followed a series of exchanges between the claimant and the respondent’s CEO in terms of which the claimant for her part asserted that a contract of employment had been entered into between the parties and thus it was not open to the respondent to withdraw the offer on 21 August, and the CEO, for his part, asserted that no employment contract had been issued to the claimant or signed by her as at 21 August 2025, and that it was therefore open to the respondent to withdraw the offer, the [suspensive] conditions attached to it not having yet been met. That correspondence culminated with the claimant’s correspondence of 1 September in which the claimant stated:- “I want to express that it was never my intention to pursue legal action against Roslin CT. I have looked forward to joining the company in good faith and had no desire to enter into conflict. However, the company’s decision to withdraw a valid employment offer, followed by a lack of accountability and mis-representation of the facts has left me with no reasonable alternative. I have exhausted informal channels and sought to resolve this matter professionally and amicably but have been met with silence and evasion. I now feel compelled to take formal steps to protect my position and seek appropriate redress.”[62]The respondent’s Chief Executive considered that communication to be a letter threatening legal action and, in the circumstances declined to engage directly with the claimant in further correspondence.[63]He decided to put the matter in the hands of the company’s legal advisers.Applicable law
[64]As is set out above the Tribunal’s contractual jurisdiction, which the claimant seeks to invoke in the instant proceedings, arises in terms of Article 3(c) of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994, SI1994/1624 Article 3(c) “Proceedings may be brought before an [Employment Tribunal] in respect of a claim of an employee for the recovery of damages ….. (c) the claim arises or is outstanding on the termination of the employee’s employment.”[65]For that criterion to be satisfied there must first have been constituted a contract of employment which is subsequently terminated.[66]“In Scots Law it is an essential of a relationship which is to be legally enforceable as a valid unbinding contract that the parties should have reached agreement on all the essential terms of their bargain”. (Stair 1, 10, 6.) “Agreement can be held to have been reached when each party has in some way communicated to the other the fact that, and the terms on which, he is willing to become bound and when they have excluded all matters of difference and reached a state of agreement and concurrence on both the fact that each is binding himself legally to the other and on the essential terms on which they are binding themselves.”[67]An offer is a conditional promise, an expression by one party to another of willingness to become legally bound by contract to that other on certain terms, conditionally on the other party being willing to become bound to the counterpart performance. An offer is always conditional and is raised into an obligation only by acceptance. It is not necessary that the word “offer” or any equivalent phrase be used, nor is the use of the word “offer” or any equivalent at all conclusive. “Offer” does not always mean an offer in the sense of an offer to contract at that point but may be related to continuing negotiations.[68]A statement of willingness to do something is not necessarily an offer capable of acceptance. A party who incurs expense upon reliance on another’s mere statement of intention, has no claim for reimbursement based on breach of contract.[69]A contract of employment may be competently constituted verbally or partly in writing and partly verbally. Notwithstanding, it is open to parties to agree whereas they may negotiate and offer and counteroffer to do and stipulate for varying matters, that the terms of the contract, that is to say the binding obligations which they mutually intend to create, are to be recorded in a written contract of employment signed by both parties.[70]Where parties, either expressly or by implication arising from their communings agree to follow such a process the contract of employment will generally not come into existence until parties have done so.[71]An offer to contract, including an offer to enter into a contract of employment, may be made subject to a suspensive condition, that is to say that the obligation to contract is contingent and that the contingency is such that nothing is due (the obligation does not arise) unless and until some uncertain event occurs. Such offers may also be subject to a resolutive condition where it is such that an established and continuing contract will cease to be obligatory on the occurrence of some uncertain event.[72]In the context entering into a contract of employment, in either case, looking at the matters from the point of view of the potential employee who receives the offer and accepts it, the obligation exists from the time when they do so. From the point of view of the employer making the offer, if the condition is suspensive, no obligation to contract comes into existence until the condition is purified. If the condition is resolutive, the obligation exists from the time when acceptance subject to that condition occurs, but is extinguished on the occurrence of the event upon which the contingency depends.[73]A communication which purports to be an acceptance cannot be treated as such if it does not accept all the terms of the offer, or if, while purporting to accept the offer it introduces any qualification, conditions or new terms which the offeror has not had an opportunity to examine or reject. Such a qualified ‘acceptance’ may however, be treated as a counter offer. Even when parties appear to have reached agreement it may appear from subsequent correspondence that they were not truly in agreement and that the communions in question fall to be regarded as forming part of precontractual negotiations.[74]When a communicated offer is met by a qualified acceptance, (that is by an acceptance in terms of which one or more of the offered conditions are not accepted and or are proposed in alternative terms,) the, qualified acceptance is, in law, is a counter offer by the making of which the original offer falls and is no longer available for acceptance. Withdrawal of Offers[75]The general rule is that an offer may be withdrawn at any point up until it is met with an unqualified acceptance.[76]It is open to a party making an offer to restrict their otherwise unfettered right to withdraw it before acceptance by stipulating, for example that the offer will be open for acceptance for a stated time or until a stated date, or to define, and thus restrict, the circumstances in which the person making the offer will be entitled to withdraw it.[77]In Scots law, such an offer is an offer to contract on stated terms coupled with a unilateral voluntary obligation not to withdraw or alter the offer before the expiry of the stated time or in circumstances other than those defined. If an offeror in such circumstances purports to withdraw the offer prior to the expiry of the time limit, or where the circumstances stipulated have not occurred, or have not yet occurred, he will be in breach of his unilateral voluntary obligation and can be sued for the loss resulting from failure to allow a contract to be made.[78]In the exercise of its contractual jurisdiction, the Tribunal has no power to award interest in breach of contract claims. Although in its wider jurisdictions interest may accrue in terms of, for example, the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996.[79]Employment Tribunal being a no expenses due to or by jurisdiction (subject to the unreasonable conduct of proceedings) no award of expenses, including in relation to the recovery of outlays, against an unsuccessful party results from a successful claim.[80]The Tribunal has no power to award compensation for “reputational damage”. Submissions[81]It is not the function of the Tribunal to record at length the submissions made by parties and these are accordingly summarised below. Words appearing in square brackets are comment of the Tribunal and not words spoken by or on behalf of a party. Submissions for the claimant[82]In summary the claimant submitted as follows. “An offer was made and accepted – acted upon by both and binding on both from I say 11 August when the verbal offer was accepted, then the 14 August then the 20 August. I say that the conditions [the checks referred to in the offer] are part of the normal onboarding process. They were all either completed, or the time for their completion had been extended [in the case of vouching my qualifications], or I had not been given a reasonable opportunity to complete them [in the case of the Occupational Health questionnaire], at the time when the respondent withdrew the offer on 21 August. The questionnaire was only received by me from the respondent on 20 August but would have been completed by me within a reasonable time had the offer not been withdrawn on 21 August. There was an intention on the part of both parties that employment would commence on the start date 6 October. I relied upon the agreement in good faith and acted upon it. In consequence I have incurred significant financial loss. There are inconsistencies in the reasons given for withdrawal as between my summary of what was discussed on the telephone on 19 August between myself and the CEO, the letter of withdrawal of 21 August, the subsequent correspondence from the respondent’s CEO on 29 August, and what is stated in the grounds of resistance in the ET3. At the point of withdrawal of the offer there was no failure on my part to comply with the conditions of the offer as far as I was aware. There was no further attempt on my part to renegotiate terms after 11 July. It is reasonable for the Tribunal to assume that the respondent was likewise satisfied with everything. I ask the Tribunal to accept that I relied upon the offer and as a result of its withdrawal I suffered loss:- o Four months’ salary from 6 October 2025 to 31 January when I obtained an interim eight week period of employment and then from the end of March 2026 because I still remain unemployed o Loss of four weeks’ notice pay o The costs of travelling to the Edinburgh area on three occasions from Morpeth to look for suitable accommodation to relocate to Regarding mitigation, I have set out in the Schedule of Loss the steps which I took to try to mitigate my loss I refer the Tribunal to two cases:- Sarker v South Tees NHS Trust EAT 2023 which found that a binding agreement followed from a verbal offer of employment thus a verbal offer can create a binding obligation and reasonable reliance on such an offer can give rise to recoverable loss. And, McCann v Snowzone 2015 which I believe was a decision of the Employment Tribunal. [Sarker was authority for the proposition that where parties have entered into a concluded and valid contract of employment which the employer seeks to terminate before the start date the employer will be acting in breach of contract and the Tribunal will have jurisdiction to consider a breach of contract claim under its contractual jurisdiction.] [McCann v Snowzone Ltd ET/3402068/2015, a decision of the Employment Tribunal, is an example of a verbal job offer leading to a legally binding contract of employment and demonstrates that withdrawal of such offers may constitute a breach of contract as, on the facts of that case, the Tribunal held that parties had created legal relations which could only be terminated by giving notice. The act of the employer in “withdrawing the offer” fell to be construed as an act of summary dismissal, that is terminating the contract without notice, and the claimant was entitled to damages for breach of contract amounting to one month’s salary [the notice period]. I am dissatisfied with the way in which the respondent has treated me. I rely on the documents in the bundle, I say I had completed all of the checks but two, I acted reasonably and in good faith at all times. As a result of the withdrawal of the offer I have suffered financial loss. Submissions for the respondent[83]In summary, Counsel for the respondent submitted as follows:- He invited the Tribunal to prefer the evidence of the respondent’s CEO over that of the claimant in relation to matters in which their evidence was in conflict, including on the issue of whether he had or had not communicated to the respondent, at the end of their telephone discussion of 19 August, that he considered that they were not yet “in alignment” in respect of a number of matters. The respondent’s primary position was that the Tribunal had no jurisdiction to consider the breach of contract claim because no contract of employment had ever been created and as such, no termination of employment had occurred placing the circumstances of the claim outwith the terms of Article 3(c) of the Extension of Jurisdiction Order. What was described as a verbal offer communicated via the intermediary of the third party recruiter and the claimant’s communication via the same medium that the salary offered was acceptable, were not operative to create a contract of employment, a number of material conditions not yet having been specified by the respondent. A written offer, subject to conditions and the reservation of a right to withdraw it, had been made on 14 August. That offer had not been accepted by the claimant since she had sought to change one of the material terms and effectively made a counter offer by the operation of which the respondent’s offer of 14 August fell away and was no longer available for acceptance. It was accepted by the respondent that in terms of the correspondence of 15 August, the respondent communicated that it was agreeable to an alternative start date of 6 October 2025, and that an updated offer reflecting the 6 October start date was issued to the claimant on 20 August. In relation to the claimant’s attempted acceptance of the offer of 14 August as first made with the 1 September start date there was a document in the bundle which showed a receipted signature on the part of the claimant dated 14 August. No such document existed showing a written acceptance by the claimant of the updated offer of 20 August. The only evidence before the Tribunal of acceptance by the claimant of that subsequent offer was the oral evidence of the claimant. That evidence was unreliable. When the claimant first gave evidence about the matter she was adamant that she had received and accepted an updated offer, with the 6 October start date in it, on 15 August and had done so using the same mechanism by which she had sought to accept, in fact made a qualified acceptance of, the offer of 14 August. Following production of the copy of the communication at page 313 of the bundle which vouched that the updated offer was only sent to the claimant on 20 August 2025 at 8:46, it was clear that her earlier evidence could not have been accurate nor reliable. In the respondent’s representative’s submission, the claimant was ultimately uncertain as to whether she had or had not in fact ever sent the updated offer by the mechanism prescribed, that is by clicking on the ‘accept and sign’ button on the respondent’s platform. But even if Tribunal were to hold that the claimant had accepted the updated offer, it was subject to “conditions precedent” which at the time of the respondent’s withdrawal had not all been fulfilled. The claimant had accepted that her vouching of her qualifications was still outstanding and that she had not yet completed and returned the Occupational Health questionnaire. Separately and in any event, that it was clear, on the evidence that the issuing of a written offer and even let it be assumed its written acceptance by the claimant was not the identified last stage in the process which parties were engaged in. The Tribunal should accept on the evidence of Mr Coleman that only he, as Chief Executive Officer could take the ultimate decision to employ or not to employ the claimant in the post of Chief People Officer; and further, that the terms of the offer/offers made to the claimant respectively on 14 August and 20 August made clear that it was only after all of the checks specified in the offer, including references, had been completed to the respondent’s satisfaction that a written contract of employment, embodying their agreement and designed to be signed by both parties, would be drawn up and sent to the claimant for her signature. That stage had never been reached and thus no contract of employment had ever come into being. The Tribunal should separately accept the evidence of Mr Coleman that he had never reached the stage where he believed that he (the prospective employer) and the claimant (the prospective employee) were “aligned”, regardless of the claimant’s impression, and that prior to 21 August, he had not reached a concluded view that the claimant was the person whom he wished to employ in the role and, as at that date, he had, per contra, reached the conclusion that the claimant was not the person whom he wished to employ in the role. That because some of the checks had not been completed as at 21 August, the respondent was free to withdraw the offer, which it had done.[84]Regarding damages, let it be assumed that the Tribunal concluded that it had jurisdiction to consider the claim and further that the respondent in withdrawing the offer had breached the contract that the measure of damages would be restricted to the one month notice pay, period of notice to which the claimant would otherwise have been entitled That the claimant had not proved causation in respect of any of the other matters that she sought to recover damages for. That while the claimant would have potentially accrued a 1/12th proportionate entitlement as paid annual leave entitlement was earned in relation to hours worked and the offer was withdrawn for the identified start date no entitlement to holiday pay had accrued. That the other heads of claim were neither attributable to any breach of contract on the part of the respondent, were related to losses which the claimant had established no causal connection to and, or, were not reasonably foreseeable to the respondent and, or, had not been proved by the claimant in the sums in which she sought recovery.[85]The respondent’s representative concluded by reiterating that the respondent’s primary case was that the Tribunal lacked jurisdiction to consider the claim. He invited the Tribunal to dismiss the claim for want of jurisdiction. Discussion and disposal[86]A valid contract of employment can be entered into and created by, amongst other means, the verbal communication of an acceptance which meets a verbally communicated offer in all material respects leading to consensus in idem being reached between the parties on all essential elements; meaning literally “agreement to the same things and which signifies that both parties have the same understanding of the agreement being formed. It is a concept which in contemporary Scots Law has evolved into an objective standard of evaluating what a reasonable person would believe based upon parties external works and conduct. There is no requirement for that contract of employment be constituted in writing.[87]On the evidence before it the Tribunal was satisfied that there was no common intention in the instant case to create legally enforceable obligations (whether in a contract of employment or otherwise), through verbal communications conducted via the conduit of the third party recruiter. It so considered by reason of the fact that such verbal communings had not identified, far less been productive of agreement on, the detail of a number of the material conditions which appear in the schedules at pages 80 and 82 of the bundle and the Tribunal rejects the claimant’s primary contention that a contract of employment was created as at 11 August 2025.[88]On the oral and documentary evidence presented the Tribunal was satisfied that the mutual intention of the parties, who were progressing through a multi-staged process of negotiation and mutual assessment of suitability the potential outcome of which might be the creation of a contract of employment, was to reduce their contract to writing through a process of the communication of written offer subject to suspensive conditions, and the communication, by an expressly specified mechanism, of an unqualified acceptance leading, upon the purging of the suspensive conditions, to the creation of a contract of employment embodied in a single document signed by both parties.[89]On 14 August 2025, the respondent issued a written offer to the claimant. The whole terms of the offer are set out at pages 76 to 80 of the joint bundle. That offer contained suspensive conditions prior to the purging (fulfilment) of which no legal obligation on the part of the respondent could be created. It was what English contract law might be referred to by the partly analogous term, the offer further specified the express mechanism, being the only mechanism, by which it could be accepted (see page 78 of the joint bundle) – “Next steps: - if you choose to accept please click ‘sign and accept offer’ at the bottom of this email ….”[90]On 14 August 2025 that conditional offer was met by a “qualified acceptance” from the claimant. As such it was not an acceptance of the respondent’s conditional offer of 14 August and, by reason of its being a qualified acceptance, the respondent’s offer of 14 August 2025 fell away and was no longer open for acceptance.[91]The qualification consisted of the claimant’s non-agreement to the offered start date of 1 September and counterproposal of an alternative start date of 6 October both 2025.[92]There thereafter followed communications, which sit within the category of pre-contractual negotiation and communings, in terms of which the respondent’s preparedness to agree to the substitution of the alternative start date in a revised offer was confirmed.[93]On 20 August 2025 the respondent communicated an updated offer reflecting an alternative start date of 6 October and a corrected articulation of the claimant’s address to the claimant. The updated offer which was communicated to the claimant on the 20 August 2025, was in terms identical to that previously communicated to the claimant on 14 August 2025 and to the terms set out at pages 76 to 80 of the joint bundle with the exception that the schedule of conditions which appears at page 80 of the bundle, and which had been incorporated by reference into the offer of 14 August 2025, was substituted with the updated version of the schedule which appears at page 82 of the joint bundle and which reflected the corrected address and the alternatively proposed start date of Monday 6 October 2025.[94]The totality of the terms of the offer communicated to the claimant by the respondent on 20 August are to be found at pages 76, 77, 78, 81 and 82 of the joint bundle.[95]That offer was an offer to contract on stated terms, subject to suspensive conditions whereby the creation of any obligation binding upon the respondent was suspended pending the purging of those conditions by the successful completion, to the satisfaction of the respondent, of all of the checks specified in the document at page 81 of the joint bundle, including references; coupled with a Unilateral Voluntary Obligation undertaken by the respondent in terms of which it restricted the exercise of what would otherwise have been their right to withdraw the offer at any time prior to acceptance, to the occurrence of a specified contingency namely:- “should any of these checks, including references, not meet our satisfaction, the offer may be withdrawn.” (page 81 of the joint bundle).[96]There was implied within that restriction of their right to withdraw, a provision that it could not be said to arise until after the lapse of any expressed period of time for compliance (in the case of the vouching of the claimant’s qualifications) within two weeks of 20 August i.e. by 3 September 2025, (page 100 of the joint bundle) and, in respect of all other checks, of a reasonable period of time, in the case of the completion of the Occupational Health questionnaire a period, in the circumstances, of at least 24 hours from the point in time at which it was effectively communicated to the claimant, that is to say from the point at which its receipt, as a matter of fact, came to the consciousness of the claimant.[97]The questionnaire was first sent to the claimant under cover of an email from the jobs team timed at 8:53 on 20 August 2025. The evidence before the Tribunal was insufficient to support a finding in fact as to when it first came to the consciousness of the claimant.[98]On 21 August 2025 at 9:45 am the respondent’s Chief Executive Officer sent the email at page 92 of the bundle, to the claimant in terms of which he stated:- “Hi Kerry, Thank you for the call on Tuesday, I think it was important for both of us to talk 1-2-1. On reflection, it was clear to me that we are not fully aligned on a number of issues we discussed. And I don’t believe that we will be able to come to a mutually agreeable position. Therefore, regrettably I have decided to withdraw the job offer. I really appreciate the interaction and the time you have taken to come to Edinburgh and I would like to wish you all the best in your future career.”[99]As at the date of the email withdrawing the offer, the contingency, to the occurrence of which the respondent had unilaterally restricted its right to withdraw the offer at any time before its acceptance, had not yet occurred. The extended period of time for submission by the claimant of vouching of her qualifications had not yet expired.[100]In so withdrawing the offer, let it be assumed that a contract of employment had already been concluded the respondent’s purported withdrawal would fall to be regarded as a termination of the contract of employment without notice and thus, an act in breach of contract which occurred on the termination of employment imbuing the claimant with title to pursue and engaging the Tribunal, jurisdiction to consider a claim for damages for breach of contract in parallel with the claimant’s title to pursue such a claim in the Sheriff Court which, would also have jurisdiction to consider it but, in the case of the Employment Tribunal, (subject to the financial limit in damages of £25,000).[101]Let it be assumed that the withdrawal of the offer was communicated at a point where a contract of employment had not yet come into being, the respondent in so prematurely purporting to withdraw the offer was an acting in breach of its unilateral undertaking not to do so giving rise to right and title on the part of the claimant to sue the respondent in contract for damages for breach of contract. In that second scenario, however, the claimant’s entitlement to raise proceedings would be restricted to proceedings raised in the Sheriff Court, at any time within the limitation period. In that circumstance the Tribunal’s contractual jurisdiction, under section 3(2) of the Employment Tribunals Act 1994 and the collateral Extension of Jurisdiction Order, would not be awakened and the Tribunal would lack jurisdiction to consider such a claim.[102]On either scenario, the claimant’s measure in damages in contract would be restricted to the recovery of four weeks’ notice pay and such other consequential loss which could prove, on the balance of probabilities be directly attributable to the particular breach of contract and was also reasonably foreseeable to the respondent at the point at which they gave their unilateral undertaking, or alternatively, entered into a valid contract of employment.[103]Of the heads of claim, beyond that of notice pay, which were pursued by the claimant, the Tribunal considered:-(a) that financial loss incurred from travelling to Edinburgh on one occasion for the purpose of seeking to identify suitable relocation accommodation would have been foreseeable to the respondent but no more than on one occasion,(b) that compensation for reputational damage with referees was neither reasonably foreseeable in the circumstances nor was there any evidence placed before the Tribunal that went to establish that such reputational damage with referees had occurred,(c) that in exercise of its contractual jurisdiction the Tribunal, as already stated, has no power to expressly award interest,(d) that, in relation to holiday pay such a claim would only arise in the scenario where the Tribunal determined that a contract of employment had been created prior to the 21 August withdrawal and that circumstance(e) would be restricted to the proportionate entitlement associated with the claimant working her contracted hours during a four week period of notice of what would otherwise have been a full annual leave entitlement but under exclusion of the four additional days, Christmas Day, Boxing Day, New Year’s Day and 2 January, all days which would not have yet fallen had the claimant been dismissed with four weeks’ notice to which she would have been entitled in terms of her contract.[104]In the scenario in which the Tribunal were to conclude that no contract of employment had yet been established, the claimant, let it be assumed she raised proceedings in the Sheriff Court, would have no entitlement to holiday pay with her damages for breach of unilateral obligation on the part of the respondent being restricted to the two elements set out above namely, notice pay and financial loss associated with one day’s travel from Morpeth to Edinburgh. No evidence going to establish the value of that latter claim was placed before the Tribunal such as would have enabled it to quantify the same.[105]Had a contract of employment been entered into.[106]It is perfectly possible for the parties to an apparent contract to provide that there should be locus poenitentiae (literally “place of repentance” used in law to describe a period or opportunity during which, subject to any unilaterally undertaken restriction, an individual can reconsider and withdraw from a contemplated action without incurring legal consequence) until the terms of their agreement have been reduced to a formal contract. For example, if a home owner offers to sell an item but changes their mind before the buyer accepts, the home owner exercises their locus poenitentiae, avoiding a binding agreement. The bare fact that the parties to a completed agreement stipulate that it shall be embodied in a formal contract does not, however, necessarily import that they are still at the stage of negotiation. In each instance it is a matter of the construction of the correspondence in the light of the facts, proved or averred, on which side of the borderline a particular case lies.[107]On the oral and documentary evidence presented, including the suspensive conditions contained within the two written offers communicated by the respondent to the claimant, the Tribunal was satisfied that the instant case was one in which parties had so provided and thus regardless of whether or not the first and or second iterated conditional offers were accepted by the claimant, no legally binding contract of employment would have resulted until the terms upon which parties had agreed had been incorporated within a single contract document which had been signed by or on behalf of both parties.[108]On the above basis and separately and in any event, on the basis that the Tribunal considered the evidence presented insufficiently reliable to support a finding in fact that the claimant had accepted the updated offer of 20 August 2025 by the mechanism prescribed, the Tribunal determines that no contract of employment had been created as at the date of the respondent’s withdrawal of the offer and thus determines, that the claimant lacks Title to Present and the Tribunal lacks Jurisdiction to Consider her complaint of breach of contract arising on termination of employment and accordingly that the claimant’s claims fall to be dismissed for want of jurisdiction.[109]The Tribunal makes clear that in so concluding it rejected the claimant’s contention that the “checks” referred to in the issued offers to contract were in the instant case to be regarded as no more than frequently encountered standard pre-employment (“onboarding”) checks which had no impact upon the formation of the contract.[110]In the instant case the Tribunal was satisfied that the completion of all of those checks, to the satisfaction of the respondent, was something that was made the subject of a suspensive condition in the issued offers to contract.[111]The purging (fulfilment) of those conditions including in particular the ultimate decision maker, the respondent’s Chief Executive Officer, being satisfied, following a consideration of amongst other things the claimant’s references that she was in the respondent’s consideration a suitable fit for the advertised appointment all required to have occurred before a contract was a prerequisite of the formation of a contract. That is a matter that cannot be said to be determined solely on the quality of the claimant’s references from previous employers, the provision of excellent references from previous employments not being incompatible with a conclusion, on the part of the prospective employer, that the prospective employee , notwithstanding such references, was not an individual who, to utilise the respondent’s description they considered to be “sufficiently aligned” with their intentions and aspirations for the role such as to be considered a successful candidate.[112]As set out above in circumstances in which the Tribunal has concluded that no contract of employment had come into existence, it has also concluded that in seeking to prematurely withdraw the offer on 21 August 2025 the respondent’s Chief Executive Officer acted in breach of the respondent’s unilateral undertaking not to do so until the particular contingency specified had occurred, and that such breach of obligation gives rise to a right to claim damages on the part of the claimant, albeit only in the Sheriff Court.[113]While the Tribunal lacks jurisdiction to determine such a claim, and thus the expression of its finding made here on a proof before answer basis, is not enforceable in law, it remains open to the claimant to raise such proceedings in the Sheriff Court. While the Tribunal, lacking jurisdiction to do so, can give no direction on the matter, in the circumstances of the findings in fact made in this judgment, the respondents may care to consider making payment to the claimant in a sum equivalent to four weeks’ net pay in lieu of notice and, upon the claimant providing vouching of the same, of the reasonably quantified costs incurred by the claimant in making what the Tribunal considers would have been a reasonably foreseeable one x return journey from Morpeth to the Edinburgh area in search of suitable relocation accommodation, with a view to avoiding the prospect of further litigation.