Booth v Communications Workers Union [1996] UKEAT 261_96_3010

EAT
Booth v Communications Workers Union
[1996] UKEAT 261_96_3010 · 1996-10-30
MRS JUSTICE SMITH: This is an appeal from the decision of an Industrial Tribunal sitting at London (South) on three days in January 1996. The decision in which the Appellant's claims were dismissed was sent to the parties on 24 January 1996.The Appellant was employed as a Secretary by the Respondents, initially on a three-month contract, then on a two-year fixed term contract from 10 June 1991. Her employment came to an end on the expiry of that contract. She alleged that the non-renewal of the contract was an unfair dismissal. She alleged that in dismissing her, her employers had discriminated against her on the ground of sex. She also alleged sex discrimination during the course of the employment.The background to the offer of employment was that the Respondent was negotiating a merger with another trade union. Pending those negotiations, the Respondent had decided to take on a secretary on a temporary basis only, in order to protect their permanent employees from redundancy, if and when the merger went through.On 26 June 1991 Mrs Reed the Respondent's office manager, wrote to the Appellant saying:

"Dear Sandra

I refer to your recent interview and am pleased to offer you the post of Senior Secretary, Telecoms Department. The appointment will be effective from 10th June 1991 and will be on the basis of a two year contract terminating on 10th June 1993. Non renewal of this contract will not constitute grounds for redundancy or unfair dismissal."The Appellant told the Tribunal that she had, on receipt of that letter, written to Mrs Reed querying the two-year period. She claimed that she had not been told that the contract would only last for two years during the course of her interview. Mrs Reed denied having received that letter. But in any event there was a meeting on 28 June at which the contract was discussed. On 1 July Mrs Reed wrote clarifying the discussion of the previous Friday:

"Dear Sandra

I refer to our discussion on Friday, 28th June in which you sought clarification on certain matters relating to my offer of a 2 year contract.I can give you an assurance that should we be in a position to offer you permanent employment at some time in the future your service will be continuous from 10th June 1991 and would accrue for the purposes of related employment terms and conditions, eg. membership of the Staff Superannuation Scheme, annual leave.As I indicated to you we have still to formalise the position regarding promotion during the two year contract and I shall write to you on this as soon as I am able."The Appellant replied by an undated letter:

"Dear Mrs Reed

Thank you for your letter dated 26 June 1991 offering me the post of Senior Secretary in the Telecoms Department from 10 June 1991. I am pleased to accept this post on the basis of a two year contract and understand that in the event of my position with UCW becoming permanent, reckonable service will be taken from 10 June 1991."The Respondent's case before the Tribunal was that the Appellant had accepted the two-year contract, knowing and acknowledging in writing that she had waived her statutory rights. The Respondents relied on Section 142 of the Employment Protection (Consolidation) Act 1978 . In reaching its decision on this aspect of the case, the Tribunal said in paragraph 6:
"Section 142 provides: Section 54 [which provides the right not to be unfairly dismissed] does not apply to dismissal from employment under a contract for a fixed term of one year or more, where the dismissal consists only of the expiry of the term without its being renewed, if before the term so expires the employee has agreed in writing to exclude any claim in respect of rights under that section in relation to that contract. Subsection (2) makes similar provisions for exclusion of redundancy payment and subsection (3) provides that the agreement mentioned in subsection (1) or (2) might be contained in the contract itself or in a separate agreement."
The Tribunal accepted the evidence of Mrs Reed that she had given no assurances that the Appellant would be given further employment after the two years and they also accepted her evidence that there had been no variation of the waiver clause in the offer letter which the Appellant had accepted. The Tribunal therefore found that Section 142 applied and the Appellant had excluded herself from bringing an unfair dismissal complaint.So far as the claim under the Sex Discrimination Act was concerned, the Appellant's case was that two men, who had been offered fixed term contracts at about the same time as she was offered such a contract, had been treated differently, in that their contracts had subsequently been made permanent, whereas hers had not. The Respondents agreed that that was so, but claimed that they had employed the two men on short-term contracts, because Mr Alan Tuffin, the General Secretary, was about to retire and a new General Secretary was to be appointed. The Respondent did not wish to bind the new General Secretary to keep these two men, who would have to work in close association with him. That was why they had been given temporary positions. Their positions had been made permanent after approval by the new General Secretary.The Tribunal accepted that that was the reason for the different treatment of those two men as compared with the Appellant and they considered that there had been no discrimination on the ground of sex. They also rejected the Appellant's other complaints about incidents of alleged sexual harassment during the course of her employment.Today, Mrs Booth who appeared in person, felt unable to pursue her grounds of appeal. She appeared unrepresented and found the experience of appearing before the Tribunal somewhat overwhelming. Nonetheless we have read the papers in her case and in particular her Notice of Appeal and Skeleton Argument. In essence she submitted that her contract of employment was intended to run until the merger of the two unions took place. Accordingly she should not have been dismissed in 1993 because the merger of the two unions had not then occurred and did not in fact occur until early 1995. The difficulty with that argument is that the Industrial Tribunal had found as a fact that there was no variation of the terms of the written offer which the Appellant had accepted: that was for a two-year contract with a waiver of statutory rights. The Appellant feels that this kind of contract is unfair and creates a class of employees with no rights at all. While we may have some sympathy with her position in that regard, all we can say is that Parliament has enacted Section 142, the provision upon which the Respondents relied. We must reject that ground of appeal.As for the finding of the Tribunal on sex discrimination, that was a pure finding of fact, in which this Tribunal has no power to intervene. Accordingly the appeal must be dismissed.