R Jones v. Hertfordshire County Council [1991] UKEAT 348_89_2611

EAT

R Jones v. Hertfordshire County Council

[1991] UKEAT 348_89_2611 · 1991-11-26

MR JUSTICE KNOX:- The appellant before this Tribunal is Mrs R A Jones. She appeal from a unanimous decision of the Bedford Industrial Tribunal which sat on 26, 27 and 28 April 1989 and held that she, Mrs Jones, was not unfairly dismissed by the Hertfordshire County Council by whom she was employed for a long time. The notice of appearance identifies 3 June 1974 as the date of the commencement of her employment. She was dismissed for refusing to attend, as requested on behalf of the County Council, at Kings Langley JMI school, the request being made in August 1988.

The only point in the appeal which has been prosecuted before us which subsists, is whether the Industrial Tribunal misconstrued Mrs Jones's contract of employment as entitling the Hertfordshire County Council lawfully to require her to attend at that school at Kings Langley. There were numerous other issues raised in the original notice of appeal and having had an opportunity of studying them we are quite satisfied that the decision to limit the point to the one just set out was an extremely wise one.

The issue that I have identified depends on whether, as was argued by Mr Clark for Mrs Jones, the terms of Mrs Jones's contract of employment were varied by an exchange of correspondence in June 1986. It is common ground that her contract before that exchange of correspondence did entitle the Hertfordshire County Council to require her to teach at the Kings Langley School so long as the instruction was not given arbitrarily, capriciously or inequitably and there is no issue on any of those matters on this appeal.

The history of the matter, so far as the appeal is concerned, starts with a letter of 20 ovember 1985, which was written by Miss Milbank, then Divisional Education Officer of the Hertfordshire County Council, to Mrs Jones in which she said among other things:-

"Dear Rosemary,

....... Perhaps you were a little concerned about your contract, which I notice needs revision. It would probably be wisest at present to give you a permanent Divisional contract until a decision is made about your permanent placement, but we can discuss this."

That letter was not only sent, of course, to Mrs Jones at her home in Hemel Hempstead but also the Headmaster at the school at which she was then teaching, the Reddings JMI School, and to other persons notably the Chairman of Governors of Little Gaddesden School where she had previously been teaching and to Mr R A Williams at County Hall. That led to the first contractual document which, it is common ground between the two parties, did govern Mrs Jones's employment for at least some time thereafter. It takes the form of an offer from the Hertfordshire County Council. It is dated 11 December 1985, and it is headed:-

"Divisional Staff (initially to be based at Reddings School)"

Mrs Jones's full name is then set out. The text reads:-

"You currently have an appointment in the County Council's service.

(i) as Teacher Scale 1 - 9/10 Burnham

(ii) with effect from 1 January 1986"

I need not read the rest of that letter except the passage at the foot of page which contains Mrs Jones's acceptance, that reads:-

"I confirm that I wish to accept the appointment on the terms and conditions referred to in the above letter."

It gives her address and signature and is dated 4 January 1986.

The expression "Divisional Staff" at the heading of that letter is a reference to the Division which corresponded to a District of Hertfordshire, the Dacorum District which included not only Little Gaddesden School where Mrs Jones had taught in the past but also Hemel Hempstead where she lived and Kings Langley where she was later asked to teach. It is clear from the face of the letter that employment elsewhere in the Dacorum Division than at Redding School would be within the terms of the contract that was being offered to Mrs Jones and which she accepted.

Mrs Jones wrote very shortly after accepting the terms of the contract, in fact two days later, to Miss Milbank a letter which included the following:-

"As you know during the past few years I have applied for several teaching posts without success and have been pleased to accept two secondments and a place on the Divisional Staff for the time being, as preferable to my former permanent position at Little Gaddesden.

However, I would be grateful for a secure appointment as soon as possible ..."

It is plain from that as well as from other pieces of evidence that Mrs Jones fully appreciated that her position was on the Divisional Staff and that that was different from a permanent position at a particular school.

On 13 January Miss Milbank replied:-

"Thank you for your letter. I do assure you that, as your contract will indicate, you have a 9/10ths secure appointment to the Division."

The 9/10ths of course is a reference to the extent of her employment and position on the Burnham Scale rather than to 9/10ths of security, the "secure" is not qualified by the fraction. The letter goes on:-

"As we have already discussed together it will be preferable if you can find a school to which you would like to be permanently attached, but otherwise at present it remains a divisional responsibility to see that you are suitably placed, whether or not you remain at the Reddings School. I should not have thought, therefore, that it is not necessary to discuss your position again though, of course, I am always willing to see you."

One suspects that there is one "not" too many in that sentence.

I come now to the most important part of the correspondence. On 28 May 1986, Miss Milbank wrote to Mrs Jones thanking her for an earlier letter and saying that she would be prepared to see her if she made an appointment and continuing as follows:-

"I understand that you are doing well at Reddings School where, as I understand it, there is the opportunity for you to remain. Unless you are unhappy about this I wonder in fact whether there is anything we need to discuss, but in any case I shall be happy to see you."

That elicited this reply:-

".... So far as I am concerned the situation has not been resolved. The fact that I am doing well at Reddings School is not the issue - it is more a question of justice, integrity and human rights.

However, it is encouraging to know that my present headmaster values me enough to want me permanently on his staff. I am wondering what my status would be and whether I would be full-time.

That is signed by Mrs Jones. That elicited the letter upon which Mr Clark's argument was principally constructed. Written by Miss Milbank again, still Divisional Education Officer, dated 17 June 1986 it is headed "Dear Rosemary" and it thanks Mrs Jones for the letter which I have just read the bulk of and continues:-

"I am glad to confirm that you have a .9 permanent appointment at the Reddings School.

I am uncertain as to whether you have recently applied for any other posts, but there are still some full time primary vacancies available if you should be interested. I expect these are listed on the sheets that are sent regularly to the schools and I am sure that your headmaster would gladly discuss them with you if you would find this helpful."

There the correspondence ends for over a year and Mrs Jones went on teaching at Reddings School during the whole of that period.

Further correspondence ensued rather more than a year later, i.e. in 1987, when in two letters Mr Nickolds, Deputy Divisional Education Officer, made the current position, as he saw it, clear to Mrs Jones from a contractual point of view. In the first of these two letters dated 2 July 1987 he said:-

"Your position with the Authority is that you hold an unlimited Burnham Scale 1 (9/10) contract, attached to the Dacorum Division, currently placed at Reddings School. This position can continue provided that it does not become necessary to reduce the establishment of Redding School."

On 27 July 1987 he said, again to Mrs Jones, in another letter:-

"As I said in my previous letter you hold a Divisional contract which places at the moment at the Reddings School. I have no other vacancy to offer you for next term and I anticipate, therefore, that you will be at the Reddings School next term. You would, of course, be welcome to discuss your situation beyond that time with other colleagues in this office."

In August 1988 another year later on, the move to Kings Langley was requested of Mrs Jones and she decline to move as asked. It is not necessary to go into the details of that, the issue that arises is whether, as Mr Clark argued for Mrs Jones, Mrs Jones's contract had been varied so as to confer upon her a permanent appointment at Reddings School as opposed to a Divisional post which point was made first by Mrs Jones at an internal appeal on 22 December 1988, after she had been dismissed for refusing to act on the instruction to go to the Kings Langley School. It is not a claim that she had advanced earlier, notably at the disciplinary hearing which occurred on 18 October 1988, but the point was made at the Industrial Tribunal hearing when Mrs Jones appeared in person in April 1989. The Industrial Tribunal dealt with the point in paragraph 12 of their decision which includes the following:-

"A further point made by Mrs Jones at the tribunal hearing was that, so she said, her divisional contract had been varied to become a permanent contract at Reddings School in the middle of 1986. Mrs Jones fully accepted that prior to this date, she had a divisional contract and that the effect of this divisional contract was that the respondents had the right to transfer her to any school within the divisional area. This admission was made at the appeal hearing of 22 December 1988, as recorded in the notes on that hearing .... and was confirmed by Mrs Jones in her evidence at this hearing. However Mrs Jones relies on certain letters in 1986 and 1987 as varying this position."

Those letters are then set out, I have read them somewhat more fully than the Industrial Tribunal quotes them in their decision. The Industrial Tribunal goes on:-

"Mrs Jones invites us to construe this correspondence as substituting, for her divisional contract, a contract of permanent employment at the Reddings School. We do not think that we can put that construction on these letters, nor do we think that Mrs Jones did so at the time. We think that all that was meant in Miss Millbank's letter was that her divisional appointment, which for the time being was at Reddings school, was a permanent one."

Finally the Industrial Tribunal says this in relation to the two last letters from Mr Nickolds which I read, written in July 1987:

"In our view, if it can be said that Mrs Jones' correspondence with Miss Millbank formed a new contract of employment, it can equally be said that her correspondence with Mr Nickolds formed a yet newer contract reverting to the position in January 1986."

It will be convenient at this stage to deal with that aspect of the matter. We are satisfied that that is not a tenable proposition for the very simple reason that a variation requires consensus between the two parties to the original contract and the two letters that Mr Nickolds wrote contain no agreement by Mrs Jones so that there cannot have been a consensual variation as a result of those two letters. However, that leaves intact what we take to be the sole real issue in this case namely, was there a variation at the earlier stage in June 1986.

An initial point was argued on behalf of the Hertfordshire County Council that the point which I have stated to be the sole issue before us was not open to Mrs Jones on her Notice of Appeal. The Notice of Appeal is a long and somewhat convoluted document which as we indicated at an earlier stage, we think that Mr Clark was very well advised not to seek to uphold in all its detail. The question before us is whether, in that document, there is contained a sufficient indication of the issue, was there or was there not a variation of Mrs Jones' contract, for this Tribunal to be able to entertain the matter. We are satisfied that there is. The relevant sentence is the first sentence in para 8 which reads:

"The finding by the Industrial Tribunal that the Applicant was not employed under a permanent contract at Redding School (paragraph 12) is not supported by the evidence of all the documents."

In our judgment that is a quite sufficient indication for the purposes of the Notice of Appeal that there was an issue as to the construction of Mrs Jones' contract of employment. One has to see this first of all in the context of litigation in this Tribunal where the rules of pleading are not as important as no doubt they are in ordinary civil litigation and more significantly one has to see it against the background of the point having been perfectly clearly taken and disposed of by the Industrial Tribunal in the hearing from which this Appeal is brought. There was therefore so far as we can tell, no question of any surprise or difficulty in the point being taken as a point. We therefore reject the preliminary point that the matter is not an arguable one on behalf of Mrs. Jones.

However, we are equally satisfied that the point is not a good one. Placed in the context of the surrounding correspondence in our view it is clear that the Industrial Tribunal reached the right conclusion. What was being explored in the correspondence between Miss Milbank and Mrs Jones just before June 1986 was a future possibility and not an existing change of a contractual nature. The combination of the letters that Miss Milbank wrote on 28 May and Mrs Jones wrote in reply on 1 June which I have read and need not repeat, in our view shows that quite clearly. Moreover, the exchange of correspondence was of a very informal nature and that has to be seen against the context of successive formal variations of Mrs Jones' contract of which the one which I read from January 1986 is only one of several examples.

Thirdly, there is the use of the word "confirm" by Miss Milbank when she describes what it is that she is doing. That, in our view, is the language of someone who is stating what the existing position is rather than someone who is accepting an offer to alter the existing position.

Fourthly, the second paragraph of the letter of 17 June which deals with the existence of other full time primary vacancies seems to us a wholly inappropriate paragraph to include in a letter which is recording an acceptance of a permanent appointment at the Reddings School. For all those reasons, although we see the force of the argument based on the single sentence "I am glad to confirm that you have a .9 permanent appoint at the Reddings School", we are satisfied that it would be misleading to read that sentence out of context and treat it as a single entity which has dispositive or contractually altering effects.

The argument was put in the alternative on the basis that that letter constituted a notice under Section 4(1) of the Employment Protection (Consolidation) Act 1978 being a written statement of a change in the Appellant's terms of employment and on that basis it was argued that the Hertfordshire County Council was estopped from denying that there was a permanent attachment to Reddings School from and since June 1986. There seemed to us to be several reasons why that argument should fail.

The first is that there was in fact by definition on the view we take of the matter no change in the Appellant's terms of employment, nor indeed was it in our view the intention of Miss Milbank to record any such change. That seems to us unpromising material from which to extract a formal notice in accordance with the requirements of Section 4(1) of the 1978 Act. Secondly there is the form of the letter which is entirely colloquial and in its context seems to us clearly not to have been intended to constitute any such written statement. Thirdly far from evidence of reliance so as to ground an estoppel there are findings of fact by the Industrial Tribunal to the effect that Mrs Jones did not in fact understand that the result of the letters that were exchanged between her and Miss Milbank in June 1986 was to alter her contractual status. The Industrial Tribunal pointed out that there were other letters where Mrs Jones recognised her divisional contract. They pointed out that when Mrs Jones saw Miss Farrow, who had succeeded Miss Milbank as Divisional Education Officer, on 1 August 1988 she, Mrs Jones, made no attempt to assert that she had a permanent position at Reddings School and on balance the Industrial Tribunal came to the conclusion that Mrs Jones had raised the point concerning the correspondence as a complete after-thought. They found as a fact that she was at the time of her transfer to Kings Langley, fully aware and believed that she was employed under a divisional contract.

Now that is a finding of fact that is binding on us. It does not conclude the question of construction as such because that is a question of law upon which we have given our opinion. So far as any question of reliance on the letters that were subsequently written by Mr Nickolds is concerned, that finding of fact as to what Mrs Jones' belief was is one which is binding upon us and it seems to us fatal to that argument.

Accordingly the Appeal will be dismissed. There is a cross-appeal which seems to be directed not so much at any relief that was granted or any reasons for granting the relief that was granted or refused by the Industrial Tribunal but at the way in which the Industrial Tribunal formulated its decision. That seems to us to be unpromising material for a cross-appeal. It concerned the extent to which the Hertfordshire County Council was at liberty to direct Mrs Jones to transfer to other schools within the Dacorum Division. We have expressed our view about that earlier in this decision and see no reason to allow the cross-appeal which will also be dismissed.