Burke v The Winchester Group [1995] UKEAT 405_95_1809

EAT

Burke v The Winchester Group

[1995] UKEAT 405_95_1809 · 1995-09-18

MR JUSTICE TUCKER : This is a Preliminary Hearing Ex-Parte of two appeals by the appellant, John Bernard Burke. The appeals are inter-related and as the appellant concedes the arguments in support of them are inter-mingled.

The first appeal relates to the substantive decision of an Industrial Tribunal held at Brighton on 23rd June, 12th September and 29th November 1994 and sent to the parties on 7th March 1995. The Tribunal decided that the appellant was not dismissed, his employment with the respondents having ended on the completion of a fixed task contract.

The second appeal relates to the refusal by the Industrial Tribunal of an application by the appellant for a review of its decision.

We have allowed the appellant to address us at length. It seems to us that no further relevant submissions could be made by him. In other words we have given the same consideration to the matter as if it had come before us by way of substantive appeal.

The appellant has quoted at length from the findings by the Tribunal. We have looked at the file of correspondence and other documents put in by the respondents who are the Winchester Group, and we have looked at a number of authorities.

The appellant is a journalist and was described by the Tribunal in complimentary terms as a well known and respected journalist. He became employed by the respondents in order to edit some publications principally Global Re-insurance and the Square Mile . Eventually the two parties disagreed and the appellant left the employment. The dispute between them arises as to the nature of that employment. The appellant contends that it was employment for a fixed term, that he was dismissed from that employment and that he is entitled either to re-instatement or compensation. For that purpose he must rely on Section 55(2)(b) of the Employment Protection (Consolidation) Act 1978 which provides as follows:

"(2) Subject to subsection (3), an employee shall be treated as dismissed by his employer if, but only if,- (b) where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract, ..."

The question for consideration by the Tribunal therefore was whether this was a fixed term contract.

By his originating application, the applicant set out in brief the nature of his claim. He sought reinstatement, he claimed that he had been unfairly dismissed. He set out the details of his employment in a document which was annexed to his application.

By their notice of appearance, the respondents in paragraph 3 disputed that the applicant was dismissed. They said that he was not dismissed, but that his contract expired and was not renewed. They set out the grounds for resisting his application. The respondents are publishers and printers of a number of publications and the applicant is an editor. They set out in paragraph 7.4 of that notice the fact that:

"Terms were agreed and the Applicant was retained by the Respondent as editor for the 1991 edition of Global Reinsurance and Square Mile, ..."

In paragraph 7.5 they contend that he was later appointed as:

"... editor for the 1992 edition of Square Mile and the 1992 edition of Global Reinsurance plus three additional quarterly issues of Global Reinsurance ..."

In 7.6 they set out that:

"On 3rd September 1992 the Applicant and Respondent entered into a further written agreement whereby the Respondent agreed to employ the Applicant as Editor for the 1993 spring, summer, autumn and winter issues of the publication Global Reinsurance. [ and ended that paragraph in these terms: ] Thus the agreement was for the publication specified and to run from October 1992 to 31st September 1993."

The date is obviously a mistake, and in our view, that was wrongly conceded by the solicitors acting for the respondents. The agreement did not run until 31st or 30th September 1993, but that was a matter to which the Tribunal had to give attention.

When the Tribunal came to consider the matter, they had before them the applicant in person who gave evidence, and the respondents were represented by Counsel who called the Managing Director of the respondent company, Mr Russell Kean to give evidence.

Now the basis of the respondents notice of appearance might seem to have been the fact that the appellant had been less than competent in a number of respects, whereas the response to the claim as put forward before the Tribunal was as the appellant contends on a different footing. We must say that the notice of appearance might have been more elegantly expressed and the true nature of respondents resistance to this claim might have been and should have been more specifically raised. Nevertheless, it was clear that their case was that there was no dismissal, that the contract expired and was not renewed, and that it was a contract for specific editions of the publications to which we have referred. And it was in our view perfectly open to the respondents to resist the application in the way in which they did.

The appellant complains that this was a belated defence to his claim. The respondents argued that he was on a fixed job and at the end of that they were entitled to dismiss him without notice. As we have observed, it is perhaps a pity that that was not more specifically pleaded, but equally it was open to the respondents to advance that argument.

The issue for the Tribunal was defined by them in this way:

"15. Two matters come to be considered by the Tribunal. Firstly, was the contract of employment a fixed task contract or was it a contract coming within the provisions of Section 55(2) of the Employment Protection (Consolidation) Act 1978, if the latter the Tribunal must go on to consider whether the dismissal was fair or unfair in accordance with the provisions under Section 57 of Act. It is the unanimous view of the Tribunal that the contract was a "fixed task contract" and there was overwhelming evidence to support this view, much of the evidence being in the form of written agreements between the two parties."

With that conclusion the appellant vehemently disagrees. He sets out his complaints in his Notice of Appeal. He complains that a number of relevant documents were not produced by the respondents. Nevertheless, it appears to us, that they were before the Tribunal and in particular the original contract was before, to which we now refer with this preface the Tribunal found that:

"16. ... The publicity business is known to be precarious particularly where specialist publications with limited circulation are concerned, and it would not make commercial sense to link the contract of employment ti a fixed term but rather to the specific task of editing and producing an annual publication and this was the only task that Mr Burke was contracted to perform, any other work undertaken by him would be paid on a free-lance basis. ..."

They then looked at the documents which it was said constituted the contractual basis of the relationship.

The first was a letter dated 9th November 1989 upon which the appellant places strong reliance, in particular because it contains an offer of the post of editor-in-chief with effect from today on the basis set out in the letter. In particular the rates of pay at £850.00 per month with a lump-sum balance to be paid in June, we believe it to be £5,000 but the writing is not clear, and balance of £5,500 to be paid on October 9th, and the other terms are set out. That the Tribunal found did not identify a fixed term with a fixed date of termination, which as they rightly said which was an essential pre-requisite to establish a fixed term contract. That finding appears to us to be unassailable.

They then came to the next contract, which governed the relationship between these parties. As they find in paragraph 18 of their reasons:

"18. In September 1990 Mr Burke was further contracted to edit the 1991 edition of Square Mile and Global Re-insurance, nothing more and nothing less, [ and that contract is set out at Flag 6 of the respondent's bundle and is contained in a letter of 7th September 1990. "This is an interim note to confirm that we will pay you £17,000 in equal monthly instalments as from October 1990 to edit the publications 1991." Again that relates to the payment, as the Tribunal found: ]... relates the payment of his salary directly to the publication of a book and not to a period of time."

And again, it is quite impossible to detect from that document the date when the contract is to end. It is perfectly clear that it was not a fixed term contract but a contract for performance of a specific task.

"In November 1991 a new contract was negotiated linked to the publication of Square Mile and 4 issues Global Re-insurance but not to a specific period."

In other words as the Tribunal found:

"... the work of the task could be brought to an end at any time."

And then as appears from Flag 10 of the bundle in September 1992 Mr Burke was offered and agreed a further contract to edit the publications, though this time Square Mile was being dropped from the contract. The document is a letter of 3rd September 1992, it offers the appellant a further contract regarding the above publication in line with his previous contracts and without prejudice to them. This contract is on the basis of £27,000 to be paid in monthly instalments as from October, for the issues for the magazine for spring, summer, autumn and winter 1993. As to that the Tribunal found:

"Again his contract related to the completion of a specific task, again nothing more and nothing less."

The Tribunal found that in September 1993:

"... the question of editing the 1994 edition came to be considered and Mr Burke was asked to put forward proposals but in doing so [ as the Tribunal found ] he proposed a figure which the Respondents considered unacceptable ..."

That was a round figure of £50,000, which seemed to the appellant to be appropriate. The respondents thought otherwise. They were not prepared to offer further employment. And as the Tribunal found they were under no obligation to do so. What they found in their concluding paragraph of their reasons was this:

"It is clear that during the 4 years Mr Burke edited publication on behalf of the Respondent's company the predominant feature was to produce specific publications on an annual or quarterly basis and any element of the task being related to a period of time, which was never fixed, was clearly subsumed by the overriding contractual responsibility to complete the task of editing and producing named publications."

That was their reasoning and it cannot in our view be faulted. Mr Burke appears to think that there is something demeaning in the finding by the Tribunal that he was employed on a contract to perform a specific task. Not at all, the members of many honourable professions are employed on a similar basis. There is nothing here which causes us to doubt the correctness of the Tribunal's decision and despite the detailed and persuasive arguments which Mr Burke has mounted and despite the authorities which he has cited to us, we are quite unable to say that he has an arguable case. Indeed as we observe at the commencement of this ruling, we have allowed him latitude: there is nothing more that we consider that he could possibly have advanced at a substantive hearing, and inevitably if there were to be an appeal it would be dismissed. Therefore we shall not allow this matter to go forward to a substantive hearing, and we dismiss both appeals. The second appeal depends upon the outcome of the first appeal and we have not considered it necessary to consider it separately, nor did the appellant invite us to do so.