Elliston v Hammersmith & Fulham Council [1994] UKEAT 220_93_0703

EAT
Elliston v Hammersmith & Fulham Council
[1994] UKEAT 220_93_0703 · 1994-03-07
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from the decision of the Industrial Tribunal held at London (South) between the 23rd and 25th September 1992. For reasons notified to the parties on the 23rd November 1992, the Tribunal unanimously rejected claims by Mr Elliston against the Hammersmith and Fulham Council under the Wages Act 1986 , the Race Relations Act 1976 , the Sex Discrimination Act 1975 and the Employment Protection (Consolidation) Act 1978.Mr Elliston was dissatisfied with that decision. By a Notice of Appeal dated 10th March 1993 he set out grounds of appeal against the decision. At the hearing before the Tribunal he was represented by Counsel instructed by his Union, NALGO. At the preliminary hearing of this appeal he appeared in person. He made submissions to the Tribunal as to why this case should proceed to a full hearing on the grounds that the Industrial Tribunal made errors of law when it held that his claim had failed. In order to understand his arguments it is necessary to look at the background to the decision.On the 21st October 1988 the Social Services Department of Hammersmith & Fulham Council wrote to Mr Elliston confirming his selection as a member of the Care Staff Bank with effect from 17th October 1988. The letter stated that his services, as a member of the Care Staff Bank, would be called on as and when the Council needed temporary help at residential or day care establishments. The letter confirmed that his employment would only be in a casual capacity, to replace for short periods members of permanent staff unable to carry out their normal duties, or to fill a vacancy pending a permanent appointment. The letter stated, in the clearest terms, "there is no guarantee of the extent of nature or work to be offered."The rest of the letter dealt with payment for his services, and the completion of time sheets and other administrative matters. The letter finished:
"To accept these conditions please sign the Form of Acceptance on the enclosed copy letter and return to me.

I hope you will find working in the Care Staff Bank interesting and rewarding."

On the 1st November 1988 Mr Elliston signed the "Certificate of Acceptance". He accepted membership of the Care Staff Bank on the terms and conditions set out in the letter.From then on Mr Elliston worked under the terms of that contract. There has not been produced to the Industrial Tribunal, or to this Tribunal, any other contract or document which replaces the original contract.Mr Elliston, in 1991, brought claims against the Council. There were two claims. The first was presented on the 16th July 1991. That was a complaint of unfair pay, discrimination, victimisation, undue pressure to work outside his contract without payment and failure to comply with Equal Opportunity policies on the ground of gender. In the Notice of Application he gave details of how he came to be employed by the Council, under the contract for the Care Bank Staff. He set out details of how, in September 1989, he was asked by the Officer in Charge at the Finlay Street premises, if he would go and help out there as there were staff problems.He stated, in a further application for unfair dismissal and victimisation, presented to the Industrial Tribunal on the 18th December 1991, that he had been working at the Finlay Street premises since September 1989 as a Residential Social Worker full time. He complained that the working conditions were poor, that he suffered from accidents which caused him to have a bad back and there were problems of finding a suitable place to sleep.In answer to those complaints the Council put in a detailed Notice of Appearance. They denied discrimination or victimisation against him on the grounds of race or gender. They denied there had been any unfair dismissal or any breach of the terms of the Wages Act . The Council's case was clearly stated as follows: that Mr Elliston had always been and remained employed by the Council in the Care Bank. The Care Bank is an internal agency of the Council's Social Services Department. Employees are employed in the Care Bank in a casual capacity to cover absences by permanent staff. They are paid only while temporarily covering a vacant post, with no guarantee of employment, or the extent or nature of work to be provided.Mr Elliston carried out work under that scheme at various locations between October 1988 and September 1989. He was then invited to cover a post at Finlay Street in September 1989. The post was that of a Residential Social Worker. He accepted the assignment. The Council's case was that that assignment was temporary only, not permanent. It ended on the 16th October 1991 when a number of permanent residential social workers were appointed to work at Finlay Street. The result was that the need for Mr Elliston's temporary services ceased. He was given proper notice that he was no longer required to work at Finlay Street. The contract has never been terminated. Mr Elliston remains a member of the Care Bank scheme.That was the dispute that came before the Industrial Tribunal. It appears from the decision that there were difficulties encountered at the hearing because of confusion surrounding the precise nature of Mr Elliston's case. It is fair to say that, in the view of the Industrial Tribunal, Mr Elliston did not receive the quality of representation which he should have done. The Tribunal were not impressed with his Counsel's understanding of the issues or his knowledge of employment law. This was an unfortunate aspect of the case. The Tribunal, however, were able to identify the issues between the parties and to come to a clear decision. The decision was prefaced by this remark, that the Industrial Tribunal had no general jurisdiction to decide a contract dispute between the parties. The Tribunal identified the letter of appointment and Mr Elliston's acceptance of it and the main conditions which governed his employment with the Council. The Tribunal found as a fact that Mr Elliston worked at different locations between October 1988 and September 1989. They referred to his assignment until October 1991 covering the post of a Residential Social Worker at Finlay Street. The Tribunal made this important finding of fact:
"There is no evidence that any separate contract of employment was issued, although the Applicant [Mr Elliston] claimed that at some stage he received a fresh written contract which was later lost.
6. At various times during his assignment to Finlay Street, the Applicant complained about various aspects of his terms of employment and at times persuaded the authorities concerned with his pay to make extra payments which were not in fact justified under his contract."The Tribunal said this:
"There is no doubt in our minds, however, but that he remained employed under the care bank provisions throughout and there was no variation of those terms as a matter of law."
It appears from the submission that Mr Elliston made to us that he was hopeful that he would be given a permanent contract, but the Tribunal have found as a matter of fact that he was not. The only contract was the one made in the letter of the 21st October 1988 accepted by Mr Elliston on the 1st November.In those circumstances the main ground on which Mr Elliston seeks to appeal cannot succeed. It is not a ground of law. It is a ground of complaint about the facts found by the Tribunal. The first ground of appeal in Mr Elliston's Notice of Appeal is:
"That the tribunal failed properly or at all to consider material evidence relating to the terms and conditions of the appellant's [Mr Elliston's] engagement by the aforesaid Council to work in the capacity of a Residential Social worker at the Finlay Street establishment. (i) The Council's Care Bank Scheme under which the appellant was previously and temporarily engaged to work at other Day Centre establishment run by the Council being no longer applicable to the appellant's new engagement to work at the Finlay Street establishment.
(ii) The appellant's engagement at Finlay Street as a RSW being full time and permanent engagement."That is not a ground of law. It is a question of fact what contract governs the employment. The Tribunal rejected Mr Elliston's submission that he had a new contract in place of the earlier Care Bank contract.Turning now to the other grounds of appeal, they assert that the Tribunal failed to consider Mr Elliston's claim for discrimination and victimisation and that its decision dismissing his claims was perverse.Those grounds do not disclose any error of law. We have looked at the allegation of racial discrimination, particularly in respect of racial remarks allegedly made by Mrs Hero in June 1991 and also at the complaints of discrimination and victimisation, particularly in relation to a trip organised at short notice for workers in July 1991.The Tribunal held that there was no evidence of discrimination. They held that there was no evidence that the alleged dismissal amounted to an act of discrimination or victimisation. The Tribunal said "alleged dismissal" because the Tribunal found as a fact that there had in fact been no dismissal of Mr Elliston. He continued as a Care Bank worker. The contract did not come to an end. All that had come to an end was his particular assignment at Finlay Street. In those circumstances, as the contract continued, there was no dismissal and, therefore, no claim of unfair dismissal could arise.In those circumstances, this appeal cannot possibly succeed, because there is no error of law. Mr Elliston's complaints are about the findings of fact by the Tribunal. There can be no appeal against those. There is no point in this appeal proceeding to a full hearing. It should now be dismissed.We appreciate that Mr Elliston may feel some grievance about this matter. Because he was frequently used for casual work and had, in particular, a lengthy assignment at Finlay Street, he may have believed that he should be treated as a permanent Residential Social Worker. As a matter of law, however, he was never given a contract as such a worker for the reasons mentioned. Although he may continue to feel aggrieved, it is not a grievance which this Tribunal can do anything about on appeal procedures. The appeal is accordingly dismissed.