Mitchell v Burrell Of Burrell's Of King's Lynn [1997] UKEAT 1077_97_0310

EAT

Mitchell v Burrell Of Burrell's Of King's Lynn

[1997] UKEAT 1077_97_0310 · 1997-10-03

JUDGE PETER CLARK :

The appellant, Mrs Mitchell, commenced employment in the respondent's accountancy business in King's Lynn as a full-time secretary on 19th April 1991. When the respondent, Mr Burrell, opened his own office in Dersingham in September 1993 she moved with him.

On about 28th March 1996, the appellant informed the respondent that she was eight weeks pregnant. She continued working full-time. In August 1996 she told the respondent that her baby was due on 11th November 1996 and that she would commence maternity leave four weeks before that date. She duly finished work on 11th October 1996 and commenced her leave.

In early September 1996, the Industrial Tribunal record it as 3rd September, the evidence was that it was 2nd September if we can anticipate the fourth of Mr Vingoe's points in this appeal, it seems to us it matters not, a conversation took place between the appellant and the respondent. The effect of that conversation is central to this case.

The appellant contended that the respondent agreed to a variation in the contract of employment whereby following her maternity leave she could work part-time from home. That conclusion was disputed by the respondent; he said that although a conversation took place, no final agreement as to part-time working at home was reached.

After Christmas the respondent was ready for the appellant to return to work in the office full-time, as was her statutory entitlement, subject to the question of variation of the contract. The appellant was not prepared to return to the office, but stood on what she regarded as the varied terms of the contract which permitted her to work part-time from home.

In due course she presented an Originating Application to the Industrial Tribunal, listing her complaints as Maternity Rights, Unfair Dismissal; sex discrimination. The matter came before the Norwich Industrial Tribunal sitting on 18th July 1997. The complaints were dismissed.

In extended reasons dated 1st August 1997 the tribunal found that at the September meeting no agreement was reached to vary the terms of the contract. They expressed their finding at paragraph 12 in this way:

"12 We have listened carefully to the evidence and read all the documents before us and regretfully come to the conclusion in this case - regretfully because we respect the applicant as a person of supreme integrity and honesty - that the applicant has failed to make out her case. Though, undoubtedly, she had formed the opinion after the discussion on 3 September that she was to be offered work at home on some basis or other and though she drew the conclusion that the basis of employment would be a pro rata hourly rate and that it would probably amount to two days a week because that is what happened to another accounts clerk when she had returned from pregnancy, there is nothing at all in the evidence to show that the discussions conducted with the respondent arrived at that point of agreement or anywhere near, and, indeed they were merely discussions in our view about what could happen - it was a possible scenario. That means that there was on 3 September no variation of the contract of employment. In order for there to be a variation of a contract there must be a meeting of minds. Each side must be clear in its own mind of the common result of the discussion - that is to say a change in the terms and conditions. In this case there was no arrival at a common view of what the new arrangement was to be; it therefore was merely a discussion about discussions, a discussion about possibilities for the future and no more."

Against that the tribunal's decision the appellant now appeals.

Mr Vingoe, who appears before us on behalf of the appellant as he did below, accepts that the alleged variation is critical to the claim. He seeks to challenge that finding. We remind ourselves that questions of fact are for the Industrial Tribunal - our jurisdiction is limited to correcting errors of law.

He makes four points in support of the appeal.

First, he criticises the tribunal's reference to the need for a meeting of the minds, and suggests that there was here an error in the tribunal's approach. We are unable to accept that submission. That is precisely what is involved in a variation of a contract, a meeting of minds between the parties leading to an agreed alteration in the contract terms.

Secondly, he refers to passages in the evidence given by Mr Burrell and Wendy Smith, a temporary replacement, he has referred us to specific passages in those witnesses proofs of evidence which stood as their evidence in chief. It seems to us that those passages are entirely consistent with the case which was being put forward on behalf of the respondent and which was ultimately accepted by the tribunal.

Thirdly, he submits that the Industrial Tribunal were wrong in paragraph 2 of the reasons in stating that the appellant was due back at work on 17th February 1997, following extended maternity leave. He says that it was common ground that she had not sought extended maternity leave, she intended to return in sense of working part-time from home 14 weeks after commencing her leave. Again, to seems to matter not to us on what date she was intending to return. The question is on what basis did the parties leave the matter in early September? Was it on the basis that she would return as a part-time employee working from home or not?

Finally, he submits, that the tribunal failed to pay proper attention to the detail of the evidence, he refers to the reference to 3rd September instead of 2nd September in paragraph 12, and also criticises the Industrial Tribunal for referring to the appellant as being excited following a meeting on 20th December, when it should have referred to the meeting in early September. It seems to us that these are matters of minutiae. The critical question is whether the Industrial Tribunal was entitled to conclude on the evidence before them that no variation in the terms of the contract had been reached by agreement. Had they accepted the appellant's evidence no doubt the result would have been wholly different. They did not. They chose to accept the evidence called on behalf of the respondent; that was quintessentially a matter for the Industrial Tribunal which is the fact finding tribunal. There is no error of law disclosed in this appeal, and accordingly it must be dismissed.