SYSTEM FlOORS (UK) LTD v DANIEL [1981] UKEAT 321_81_1410

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1981] UKEAT 321_81_1410

Case No Appeal No. UKEAT/321/81

Between

SYSTEM FlOORS (UK) LTDAPPELLANT

DANIELRESPONDENT

Before

The Hon. Mr. Justice Browne-Wilkinson (P)

Mrs. D. Lancaster

Mr. J.G.C. Milligan O.B.E.

Date 14 October 1981

[1]MR. JUSTICE BROWNE-WILKINSON: Mr. Daniel claims that he has been unfairly dismissed Toy System Floors (United Kingdom) Ltd., his employers. The industrial tribunal was asked to decide as a preliminary point whether Mr. Daniel had been employed for 52 weeks prior to the effective date of termination of his employment, viz 14th November 1980. It is agreed that if he was employed for the first time by the employers after 19th November 1979 he did not have the necessary period of 52 weeks' employment required by Section 64 of the Employment Protection (Consolidation) Act 1978 as amended. The facts are these. The employers used staff provided for them by an agency known as the City Staff Bureau in Coventry. In September 1979 Mr. Daniel became an employee of the agency. The agency sent Mr. Daniel to work at the employers premises for a period of many weeks; the agency paid Mr. Daniel and the employers paid the agency. The question then arose whether Mr. Daniels should become a direct employee of the employers. An interview took place on 12th November 1979. During that interview Mr. Daniel completed an application form for employment by the employers. The industrial tribunal records that on or before 16th November 1979 Mr. Daniel was told that his employment by the respondent company would commence on 19th November 1979. In the event, it appears that there was a hitch as between the employers and the agency, as a result of which Mr. Daniel continued to be paid by the agency, down to 30th November 1979. He continued to work at the employers' place of business.

(d) of their reasons say this:

"It is more likely than not that the applicant's date of commencement was the 26 November rather than the 19 November because of a failure by the respondent company's management to notify the staff Bureau in time for the applicant's employment with the respondent company to begin, as intended on all sides, on the 19 November 1979. The pay records show that the applicant's employment at the very earliest so far as pay is concerned began on the 26 November 1979."

The evidence before the tribunal showed that Mr. Daniel was treated as having been employed by the agency down to 1st December 1979 and started to be employed by the employers on 3rd December 1979. Some three months after November 1979 Mr. Daniel was handed a statement of terms and condition of employment ("the Statement"). The Statement is headed "Contracts of Employment Act 1972 as amended by the Trade Union and Labour Relations Act 1974 and the Employment Protection let 1975". It says:

"This statement dated 16.11.79 sets out certain particulars of the terms and conditions on which System Floors (U.K.) Ltd. employs R. Daniel"

. Then it says:

"Your employment with us began on 19.11.79."

There is nothing else in the body of the form that is material, But in the top right hand corner there appears in print:

"Employee signature to acknowledge receipt of this statement"; and then opposite that, Mr. Daniel's signature. It is on those facts that the industrial tribunal had to decide whether or not the employment started on 19th November 1979 or on some date thereafter. The industrial tribunal held that the employment did start on 19th November 1979. It reached that conclusion in reliance on the decision Df the Court of Appeal in Gascol Conversions Ltd, v. Mercer [1974] ICR 420 . The tribunal treated that decision as establishing that in the present case the Statement constituted a binding contract and, being reduced into writing, was the sole evidence permissible of the contract and its terms. The tribunal therefore held that in law the contract began on 19th November 1979 and that it had jurisdiction. Alternatively the tribunal said that it had had regard to the evidence concerning the mistake which was allowed in during the course of the hearing, that the mistake was entirely due to negligence on the part of the employers and that it would be inequitable to allow the employers to take advantage of Its own mistake in order to shut somebody out of a right to be heard concerning the loss of employment. The tribunal does not state what was the nature of the mistake made by the employers. The employers appeal against that decision. The first issue is whether the industrial tribunal was right in holding that the Statement was a contract and fell within the decision of the Court of Appeal in Gascol Conversions Ltd, v. Mercer. The Statement was served under the statutory provisions now included in sections 1 to 4 )f the Employment Protection (Consolidation) Act 1978. Under Section I(2), an employer is required, in a statement which must be served under that section, to specify the date when the employment began. There is some authority as to the effect of the statutory particulars )f the terms of employment. In Turriff Construction Ltd, v. Bryant [1967] I.T.R. 292 the Divisional Court had to consider for the purposes of redundancy payment what effect was to be given to the number of hours worked specified in a statutory statement. Speaking of the statutory predecessor of Section 1 of the 1978 Act, Lord Parker, giving the decision of the Court, said this:- "

It is of course quite clear that the statement made pursuant to Section 4 of the Act of 1963 is not a contract. It is not even conclusive evidence of the terms of a contract." Again, the Divisional Court in Parkes Classic Confectionery Ltd. v. Ashcroft [1973] 8 I.T.R. 43 overruled the decision of an industrial tribunal which had held that where the terms of the contract of employment had been varied, but the employer had failed to serve particulars of the changes in the terms in accordance with what is now Section 4 of the 1978 Act, ;he employer was not entitled to rely on the varied contract. The Divisional Court held that notwithstanding the failure to serve the necessary statutory statement and notwithstanding that that might be a criminal offence, there was nothing in the Act to provide that a change of contractual terms should be ineffectual between the parties merely because the employer had failed to give written notice of the change. It seems to us, therefore, that in general the status of the statutory statement is this. It provides very strong prima facie evidence of what were the terms of the contract between the parties, but does not constitute a written contract between the parties. Nor are the statements of the terms finally conclusive: at most, they place a heavy burden on the employer to show that the actual terms of contract are different from those which he has set out in the statutory statement. Against that background we turn to consider the decision of the Court of Appeal in Gascol Conversions Ltd, v. Mercer which was the basis of the industrial tribunal's decision in this case. In that case there was an agreed variation in the terms on which the employees were engaged. When the Industrial Relations Act 1971 came into operation the employer became bound to give a written statement of particulars, and in pursuance of that obligation the employer sent a new contract of employment to each of their men. Each man was given a copy to keep, and he was required to sign a document in these terms:

"I confirm receipt of a new contract of employment dated February 25th, 1972, which sets out as required under the Industrial Relations Act 1971 the terms and conditions of my employment."

Mr. Mercer signed such document. The Court of Appeal held that in those circumstances the document constituted a binding written contract and that accordingly no evidence was admissible to show that the terms of the contract were otherwise. In our view that case does not cover the present case. In that case Mr. Mercer had signed a document which he confirmed was a new contract of employment and that it set out the terms and conditions of his employment. The Court of Appeal treated that as being a contract in writing, as indeed it was, having been signed by both parties. But in the case of an ordinary statutory statement served pursuant to the statutory obligation, the document is a unilateral one merely stating the employer's view of what those terms are. In the absence of an acknowledgment by the parties that the Statement is itself a contract and that the terms are correct (such as that contained in the Mercer case,) the statutory statement does not itself constitute a contract in writing. In the present case, all that Mr. Daniel did was to sign an acknowledgement that he had received the Statement. In no sense did he sign it as a contract or acknowledge the accuracy of the terms in it. We therefore think that the industrial tribunal erred in law in treating date of commencement mentioned in the Statement as decisive because it was a contractual term. In our view the Statement is no more than persuasive, though not conclusive, evidence of the date of commencement. As to the alternative ground of decision advanced by the industrial tribunal, counsel appearing before us for Mr. Daniel has not sought to uphold it. He does not put forward any claim based on some form of estoppel. We are therefore left with a position in which the basis of the industrial tribunal's decision is in our view erroneous. The question arises whether we can decide the matter on the facts as found by the industrial tribunal or must remit it for them to reconsider the matter. We have not found this an easy question. The tribunal has not in its reasons stated what occurred on 19th November 1979 or the circumstances under which Mr. Daniel came to know that he was not being employed as from the 19th November or indeed whether he ever came to know it at all. However, what we do have is the finding that we have already read: that "it is more likely than not that the applicant's date of commencement was the 26th November". In favour of the view that the contract commenced after 19th November, all the facts point that way except for two. The first is that the Statement records that the employment commenced on the 19th. The second is the fact that, according to the tribunal's finding, Mr. Daniel had been told that his employment would commence on the 19th. As to the effect of the inclusion in the Statement of a commencement date of 19th November, the tribunal appear to have been satisfied that the inclusion of that date was a mistake, and they so treat it in para. 7 of their reasons. We must therefore, we think, proceed on the basis that it was a mistake. We cannot accept Mr. Taylor's submission on behalf of Mr. Daniel that the commencement date included in the Statement must be treated as being of almost conclusive validity and ought to have been preferred to all other evidence of the actual date of commencement. certainly it is an important factor, but it is one only; and if the inclusion of the date 19th November 1979 in the Statement was shown to have been a mistake, its evidential value is certainly much diminished. As to the second factor, we were much concerned at one stage of the hearing that Mr. Daniel might have gone to work on 19th November 1979 under the impression that he was on that day being employed by the employers however, we have been referred to a note of the proceedings before the industrial tribunal taken by the solicitor for the employers and agreed before us by the solicitor for the employee. This records Mr. Daniel as having given evidence in chief to the following effect:

"I signed the application on 12th November. I was told I was starting on the 19th. The final arrangements were left to the respondent. Should be full time this week and will arrange a clock card. I was told that someone had failed to tell City Staff and I could not start until 26th November. I received by last wage slip from City Staff on 30th November."

If that was the evidence given, it is in our view only consistent with Mr. Daniel knowing before the 19th November of the slip-up that had occurred over his employment commencing on the 19th; otherwise he could not have said that he was told that he could not start "until" the 26th. It seems to us, therefore, that despite the gap in the findings of primary fact in the industrial tribunal's reasons, the conclusion that the employment started on some date after the 19th November was a conclusion which no tribunal could have failed to reach on the evidence before it. It follows that the employment started after 19th November. Mr. Daniel lacks the necessary 52 weeks' qualification to bring this case, and this case should not go forward. For those reasons we allow the appeal. P.A. Haswell, 'Hollyshaw,' Castle Hill View, Bardsey, Leeds LS17 9EE. Verbatim Reporter and Tape Transcriber MR. JUSTICE BROWNE-WILKINSON: Mr. Daniel claims that he has been unfairly dismissed Toy System Floors (United Kingdom) Ltd., his employers. The industrial tribunal was asked to decide as a preliminary point whether Mr. Daniel had been employed for 52 weeks prior to the effective date of termination of his employment, viz 14th November 1980. It is agreed that if he was employed for the first time by the employers after 19th November 1979 he did not have the necessary period of 52 weeks' employment required by Section 64 of the Employment Protection (Consolidation) Act 1978 as amended. The facts are these. The employers used staff provided for them by an agency known as the City Staff Bureau in Coventry. In September 1979 Mr. Daniel became an employee of the agency. The agency sent Mr. Daniel to work at the employers premises for a period of many weeks; the agency paid Mr. Daniel and the employers paid the agency. The question then arose whether Mr. Daniels should become a direct employee of the employers. An interview took place on 12th November 1979. During that interview Mr. Daniel completed an application form for employment by the employers. The industrial tribunal records that on or before 16th November 1979 Mr. Daniel was told that his employment by the respondent company would commence on 19th November 1979.

[2]In the event, it appears that there was a hitch as between the employers and the agency, as a result of which Mr. Daniel continued to be paid by the agency, down to 30th November 1979. He continued to work at the employers' place of business.

(d) of their reasons say this:

"It is more likely than not that the applicant's date of commencement was the 26 November rather than the 19 November because of a failure by the respondent company's management to notify the staff Bureau in time for the applicant's employment with the respondent company to begin, as intended on all sides, on the 19 November 1979. The pay records show that the applicant's employment at the very earliest so far as pay is concerned began on the 26 November 1979."

[3]The evidence before the tribunal showed that Mr. Daniel was treated as having been employed by the agency down to 1st December 1979 and started to be employed by the employers on 3rd December 1979.

[4]Some three months after November 1979 Mr. Daniel was handed a statement of terms and condition of employment ("the Statement"). The Statement is headed "Contracts of Employment Act 1972 as amended by the Trade Union and Labour Relations Act 1974 and the Employment Protection let 1975". It says:

"This statement dated 16.11.79 sets out certain particulars of the terms and conditions on which System Floors (U.K.) Ltd. employs R. Daniel"

. Then it says:

"Your employment with us began on 19.11.79."

There is nothing else in the body of the form that is material, But in the top right hand corner there appears in print: "Employee signature to acknowledge receipt of this statement"; and then opposite that, Mr. Daniel's signature.

[5]It is on those facts that the industrial tribunal had to decide whether or not the employment started on 19th November 1979 or on some date thereafter.

[6]The industrial tribunal held that the employment did start on 19th November 1979. It reached that conclusion in reliance on the decision Df the Court of Appeal in Gascol Conversions Ltd, v. Mercer

[1974] ICR 420

. The tribunal treated that decision as establishing that in the present case the Statement constituted a binding contract and, being reduced into writing, was the sole evidence permissible of the contract and its terms. The tribunal therefore held that in law the contract began on 19th November 1979 and that it had jurisdiction. Alternatively the tribunal said that it had had regard to the evidence concerning the mistake which was allowed in during the course of the hearing, that the mistake was entirely due to negligence on the part of the employers and that it would be inequitable to allow the employers to take advantage of Its own mistake in order to shut somebody out of a right to be heard concerning the loss of employment. The tribunal does not state what was the nature of the mistake made by the employers. The employers appeal against that decision.

[8]The first issue is whether the industrial tribunal was right in holding that the Statement was a contract and fell within the decision of the Court of Appeal in Gascol Conversions Ltd, v. Mercer. The Statement was served under the statutory provisions now included in sections 1 to 4 )f the Employment Protection (Consolidation) Act 1978. Under Section I(2), an employer is required, in a statement which must be served under that section, to specify the date when the employment began. There is some authority as to the effect of the statutory particulars )f the terms of employment. In Turriff Construction Ltd, v. Bryant [1967] I.T.R. 292 the Divisional Court had to consider for the purposes of redundancy payment what effect was to be given to the number of hours worked specified in a statutory statement. Speaking of the statutory predecessor of Section 1 of the 1978 Act, Lord Parker, giving the decision of the Court, said this:- "It is of course quite clear that the statement made pursuant to Section 4 of the Act of 1963 is not a contract. It is not even conclusive evidence of the terms of a contract."

[9]Again, the Divisional Court in Parkes Classic Confectionery Ltd. v. Ashcroft [1973] 8 I.T.R. 43 overruled the decision of an industrial tribunal which had held that where the terms of the contract of employment had been varied, but the employer had failed to serve particulars of the changes in the terms in accordance with what is now Section 4 of the 1978 Act, ;he employer was not entitled to rely on the varied contract. The Divisional Court held that notwithstanding the failure to serve the necessary statutory statement and notwithstanding that that might be a criminal offence, there was nothing in the Act to provide that a change of contractual terms should be ineffectual between the parties merely because the employer had failed to give written notice of the change.

[10]It seems to us, therefore, that in general the status of the statutory statement is this. It provides very strong prima facie evidence of what were the terms of the contract between the parties, but does not constitute a written contract between the parties. Nor are the statements of the terms finally conclusive: at most, they place a heavy burden on the employer to show that the actual terms of contract are different from those which he has set out in the statutory statement.

[11]Against that background we turn to consider the decision of the Court of Appeal in Gascol Conversions Ltd, v. Mercer which was the basis of the industrial tribunal's decision in this case. In that case there was an agreed variation in the terms on which the employees were engaged. When the Industrial Relations Act 1971 came into operation the employer became bound to give a written statement of particulars, and in pursuance of that obligation the employer sent a new contract of employment to each of their men. Each man was given a copy to keep, and he was required to sign a document in these terms:

"I confirm receipt of a new contract of employment dated February 25th, 1972, which sets out as required under the Industrial Relations Act 1971 the terms and conditions of my employment."

[12]In the present case, all that Mr. Daniel did was to sign an acknowledgement that he had received the Statement. In no sense did he sign it as a contract or acknowledge the accuracy of the terms in it. We therefore think that the industrial tribunal erred in law in treating date of commencement mentioned in the Statement as decisive because it was a contractual term. In our view the Statement is no more than persuasive, though not conclusive, evidence of the date of commencement.

[13]As to the alternative ground of decision advanced by the industrial tribunal, counsel appearing before us for Mr. Daniel has not sought to uphold it. He does not put forward any claim based on some form of estoppel.

[14]We are therefore left with a position in which the basis of the industrial tribunal's decision is in our view erroneous. The question arises whether we can decide the matter on the facts as found by the industrial tribunal or must remit it for them to reconsider the matter. We have not found this an easy question. The tribunal has not in its reasons stated what occurred on 19th November 1979 or the circumstances under which Mr. Daniel came to know that he was not being employed as from the 19th November or indeed whether he ever came to know it at all. However, what we do have is the finding that we have already read: that "it is more likely than not that the applicant's date of commencement was the 26th November". In favour of the view that the contract commenced after 19th November, all the facts point that way except for two. The first is that the Statement records that the employment commenced on the 19th. The second is the fact that, according to the tribunal's finding, Mr. Daniel had been told that his employment would commence on the 19th. As to the effect of the inclusion in the Statement of a commencement date of 19th November, the tribunal appear to have been satisfied that the inclusion of that date was a mistake, and they so treat it in para. 7 of their reasons. We must therefore, we think, proceed on the basis that it was a mistake. We cannot accept Mr. Taylor's submission on behalf of Mr. Daniel that the commencement date included in the Statement must be treated as being of almost conclusive validity and ought to have been preferred to all other evidence of the actual date of commencement. certainly it is an important factor, but it is one only; and if the inclusion of the date 19th November 1979 in the Statement was shown to have been a mistake, its evidential value is certainly much diminished.

[15]As to the second factor, we were much concerned at one stage of the hearing that Mr. Daniel might have gone to work on 19th November 1979 under the impression that he was on that day being employed by the employers however, we have been referred to a note of the proceedings before the industrial tribunal taken by the solicitor for the employers and agreed before us by the solicitor for the employee. This records Mr. Daniel as having given evidence in chief to the following effect:

"I signed the application on 12th November. I was told I was starting on the 19th. The final arrangements were left to the respondent. Should be full time this week and will arrange a clock card. I was told that someone had failed to tell City Staff and I could not start until 26th November. I received by last wage slip from City Staff on 30th November."

[16]If that was the evidence given, it is in our view only consistent with Mr. Daniel knowing before the 19th November of the slip-up that had occurred over his employment commencing on the 19th; otherwise he could not have said that he was told that he could not start "until" the 26th.

[17]It seems to us, therefore, that despite the gap in the findings of primary fact in the industrial tribunal's reasons, the conclusion that the employment started on some date after the 19th November was a conclusion which no tribunal could have failed to reach on the evidence before it. It follows that the employment started after 19th November. Mr. Daniel lacks the necessary 52 weeks' qualification to bring this case, and this case should not go forward.

[18]For those reasons we allow the appeal. P.A. Haswell, 'Hollyshaw,' Castle Hill View, Bardsey, Leeds LS17 9EE. Verbatim Reporter and Tape Transcriber