MR W S FOWLER v DUDLEY COLLEGE OF TECHNOLOGY [2000] UKEAT 406_00_1810

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 406_00_1810

Case No Appeal No. EAT/406/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR W S FOWLERAPPELLANT

DUDLEY COLLEGE OF TECHNOLOGYRESPONDENT

Before

Mr Justice Charles Mr I Ezekiel Mr D Norman

Date 18 October 2000

[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE CHARLES : This appeal comes before us today by way of preliminary hearing. Our task is therefore to consider whether or not the appeal raises points of law that are reasonably arguable. The parties are a Mr Fowler and the Dudley College of Technology. Mr Fowler is the Appellant and was the Applicant below. The appeal is against a decision of an Employment Tribunal sitting at Birmingham on 17 December 1999 and 14 January 2000. The Extended Reasons for the decision were sent to the parties on 17 February 2000.

[2]The Employment Tribunal dismissed Mr Fowler's complaint which on his IT1 was for breach of contract, redundancy payment and unfair dismissal. The basis of the Tribunal's dismissal of Mr Fowler's claim was that it concluded that he had not been dismissed. The nub of the dispute between the parties was whether Mr Fowler had been constructively dismissed.

[3]The Employment Tribunal refused a review which Mr Fowler sought in early March of this year. This was refused pursuant to Rule 11(5) and the reasons for that refusal are contained at page 39 of our bundle and include the following:

"The arguments and evidence put forward in the application for Review were, almost entirely, put forward during the hearing and considered by the tribunal before reaching its decision. Any additional arguments/evidence eg amplification of the organisational distinction between O.L. and 'taught' tuition, could have been made at the hearing. The interval between hearing dates gave ample opportunity for considering and preparing arguments/evidence. The purpose of a review is not to give a party a 'second bite at the cherry' by repeating points already made, or putting forward points he/she could have made, but did not."

[4]Those reasons relate back to points referred to in paragraphs 3 and 4 of the Extended Reasons under the heading "brief background" and points made by Mr Fowler to us today. Paragraphs 3 and 4 are in the following terms:

"3 The brief background to the application is that the respondents are providers of further education facilities. At the times material to this application the respondents were accredited for the provision of teaching for qualifications granted by the Chartered Institute of Marketing ("

CIM"). There are three levels of qualifications namely (in ascending order) the Certificate, Advanced Certificate, and Diploma. There are four modules or subjects per qualification. The teaching might be provided by means of taught classes or open learning (also referred to as 'flexi-study'). The latter method involved the student purchasing a number of hours of personal tuition by a lecturer of the respondents. In order to be financially viable taught classes need to comprise at least 12 students. If fewer than that enrolled, a taught class might not be run by the respondents. The number of students wanting a particular course would normally not be known until the completion of the enrolment and induction. Indeed changes in number might occur even after the commencement date of a course. There was a possibility of an ad hoc arrangement whereby students on open learning might 'pool' their hours with other such students and have joint classes whose total duration equalled the hours pooled. This arrangement was referred to as 'group learning' and was used by the applicant for the teaching of Diploma students in the academic year 1997/8. 4 The applicant entered the respondent's employ as a part-time lecturer in 1991. He was originally recruited with the objective of establishing a Diploma course, which he did. However, over the subsequent years, he also taught parts of the courses for Certificate and Advanced Certificate. His employment terminated when he wrote a letter to the respondents dated 6 September 1998 (quoted hereinafter in these reasons)."

[5]The last part of paragraph 3 contains important matters relating to the factual background and the findings of fact. Mr Fowler submits today to us that it contains a fundamental misunderstanding by the Employment Tribunal of (adopting the wording of the review decision) "the distinction between 'open learning' and 'taught' tuition".

[6]As I understand the point made by Mr Fowler today it is that the sentence that reads "There was a possibility of an ad hoc arrangement whereby students on open learning might 'pool' their hours with such other students and have joint classes whose total duration equalled the hours pooled" demonstrates that the Employment Tribunal misunderstood a fundamental point namely, that students who were originally enrolled for open learning were not students who did, or would be likely to, pool their hours.

[7]The ad hoc arrangement involved, as I understood Mr Fowler's position today, two steps. First, that students had enrolled for a taught course and the position was reached that there were less than 12 students who had enrolled for that taught course. The example he gave us was 9 students. The ad hoc arrangement was then that, if the students who had enrolled for a taught course were transferred and described as "students enrolled for open learning" the number of hours that they carried with them (his example was 5 hours each) meant that if they were pooled together 45 hours of teaching were available and that 45 hours could form the basis for a taught class.

[8]Mr Fowler went on to explain that these points as to the nature of the ad hoc arrangement lie at the heart of the change in enrolment process which he relies on as entitling him to terminate his contract because (and I think I am probably repeating myself now) he said, that students who enrol for open learning would never be interested in pooling their hours to become members of a taught class because the very reason they enrolled for open learning is that they wished to have single hours of teaching, no doubt at times that are convenient to themselves, often as I understand it, outside normal college hours and, as Mr Fowler told us, on occasion he would teach such students at his home in the evening.

[9]So, in short Mr Fowler's point is that the Employment Tribunal made and proceeded upon a fundamental misconception of the ad hoc arrangement described as group open learning.

[10]Mr Fowler also made some oral submissions based on his skeleton argument and the point he seeks to raise as point 6e, by amending his Notice of Appeal in relation to paragraph 37 of the Extended Reasons. Our initial impression is that Mr Fowler has misread paragraph 37 in concluding that it is a finding that he knew that there was going to be a change. But even if that is right he makes submissions to us that the conclusion of the Employment Tribunal that he had a warning by reason of the matters set out in paragraph 37 is flawed because, as we understand it, of the misunderstanding of the Tribunal of the distinction between open learning, taught hours and group open learning (group open learning being the description given to the ad hoc arrangement I have attempted to describe earlier).

[11]It seems to us, on the information that we have (and unfortunately we have to describe our view as a preliminary view at a preliminary hearing), that the point that the Employment Tribunal proceeded on the basis of a fundamental misunderstanding gives rise to reasonably arguable points of law, albeit that the point is one directed to the fact-finding exercise of the Tribunal.

[12]Another point raised by Mr Fowler but on which we did not hear oral submission today related to the decision of the Employment Tribunal, as we read their reasons, that the inclusion in the contract of an entire contract clause was effective to exclude all implied terms from the contract and, in particular, the implied term of mutual trust and confidence. Unsurprisingly in that context the Tribunal refer to the decision of the House of Lords in Malik v Bank of Credit and Commercial International SA

[1997] IRLR 462

[13]We are aware that the President of this Tribunal has recently given a lecture on this topic. We did not hear the lecture but we understand that it included points which would support the view that it is reasonably arguable that this conclusion of the Employment Tribunal was wrong in law. Indeed, without the benefit of knowing that such lecture had been given, our preliminary view would have been that there is room for argument that the Employment Tribunal reached the wrong conclusion as to the exclusion of implied terms into this contract.

[14]However of itself that conclusion does not in this case necessarily found a point of law that is reasonably arguable which should lead to this appeal going forward to a full hearing. The reason for that is, that in paragraphs 35 through to a paragraph which should be numbered 38, but through typographical error is put in as a second 36, the Employment Tribunal go on to consider the position if they are wrong as to their rejection of the incorporation of the implied terms relied on by Mr Fowler.

[15]Again, as a preliminary view, it seems to us that two points arise as to that. The first is that it should be considered whether that alternative approach is flawed, having regard to the conclusions reached as a matter of law. Put another way, if the conclusions of law are found to be wrong, do they, in the circumstances of this case, invalidate the findings of fact put on an alternative basis?

[16]Additionally, as I have already pointed out, in that fact-finding exercise Mr Fowler urges that the Employment Tribunal proceeded on the basis of a fundamental misunderstanding. For example, going back to paragraph 37 of the Extended Reasons Mr Fowler says that what they took to be a warning was no such thing because what was being discussed was not what actually happened.

[17]Having heard argument as to what Mr Fowler says is a fundamental misunderstanding and flaw, we retired and decided that this was a case in which it was appropriate to take the exceptional course of adjourning this preliminary hearing and inviting attendance by the Respondent at an adjourned preliminary hearing which would not necessarily be before this Tribunal as presented constituted. This would have the consequence that Mr Fowler would have to convince the new Tribunal that his appeal raises reasonably arguable points of law. That Tribunal may or may not agree with the preliminary views we have stated.

[18]Equally, we have not considered the other arguments put by Mr Fowler in his skeleton argument, save in the sense that we have read that skeleton argument. We have not heard him on them and therefore we express no view at all about those points and they will be matters which he can advance on the renewed preliminary hearing.

[19]The factors that have caused us to take this unusual course are firstly, the preliminary views we have reached and set out above and the difficulty we feel without having had the benefit of(i) seeing the bundle of documents and the written statements that were before the Employment Tribunal, or

(ii) hearing from the Respondent, in assessing the force of Mr Fowler's point that the Employment Tribunal made and proceeded on the basis of a finding relating to group open learning that was fundamentally flawed. It seems to us that representatives of the Respondent are likely to be able to provide considerable assistance to this Tribunal in its consideration of the point whether or not it is reasonably arguable that the Extended Reasons demonstrate a fundamental flaw in the Employment Tribunal's understanding of the true position having regard to the evidence that was before the Employment Tribunal.

[20]Secondly, having regard to the extensive grounds advanced by Mr Fowler, he seeks a number of directions should the appeal go ahead as to Chairman's Notes and Notes of Evidence. It seems to us that we would not be in a sufficiently informed position to make a decision as to these directions on the information we have and without having seen the bundle. Again, representatives of the Respondents should hopefully make this task easier should the Tribunal on an adjourned hearing feel that this matter should proceed to a full hearing. Additionally, that Tribunal would be in a position, or at least in a better position than us, to precisely identify the issues which should go forward to a full hearing, if any.

[21]It therefore seemed to us that the choice facing us was whether we should identify the points that we have described as ones which, on a preliminary view, seem to us to potentially give rise to arguable points of law as points that are reasonably arguable and send this matter forward for a directions hearing at which the Respondents could be represented and could apply to strike out, or alternatively to take the course we have decided to take of adjourning this matter, so that exceptionally there is a further preliminary hearing at which the Respondents are (or can be) represented.

[22]It seems to us the latter course is the better one and one that best reflects the position reached. It will make it clear to the parties that the issue that would still be before this Tribunal is whether or not this appeal raises reasonably arguable points of law. We repeat that in our view on the adjourned hearing this Tribunal should be in a much better position than we are, if they conclude that this appeal does raise reasonably arguable points of law, to further identify the issues and what, if any, Notes of Evidence should be called for.

[23]With those points in mind, we will direct the relevant Officer of this Tribunal to contact the Employment Tribunal and ask them to send to us the bundles that were before that Tribunal and also, the witness statements and the additional documents that were put in during the course of the hearing.

[24]We will also direct that the relevant Officer of this Tribunal is to notify the parties when those bundles have been received and provide them with an index of the documents. If either of the parties does not retain the relevant documents then they will have to make an application to this Tribunal to obtain a copy of the bundle. If contrary to Mr Fowler's understanding the Employment Tribunal do not have the documents, on being informed of this (by this Tribunal or otherwise), Mr Fowler should contact the Registrar and seek further directions as to the production of a bundle. He should also keep in touch with this Tribunal concerning progress as to obtaining the bundles from the Employment Tribunal to ensure that he is told of any problems as to that as soon as possible.

[25]It seems to us that it is important that this Tribunal has the benefit of seeing the bundle that was before the Employment Tribunal together with the Witness Statements that were before that Tribunal and the additional documents handed in during the hearing.

[26]It follows that Mr Fowler was right in his précis of what we told him we intended to do when he stated that on the adjourned hearing he will have the opportunity to present the further arguments that are in his Notice of Appeal and will have to repeat the arguments he has already made to us, which I have sought to describe in this judgment.

[27]We have concluded that, although the course we have taken is an exceptional one it is one that is warranted in this case because if it is not taken there is, we think, a real risk that the time taken on this appeal would be lengthened and it would involve a study of documentation that it does not warrant.

[28]So the order will be that we adjourn the preliminary hearing, invite the Respondent to be represented on the adjourned hearing and give the directions for the production of the bundle referred to earlier in this judgment. These directions initially put the onus on the Officers of this Tribunal and the Employment Tribunal. If the bundles are not produced the onus is then on Mr Fowler to make an application for further directions to ensure that if possible the bundles are before this Tribunal on the adjourned hearing and that application for directions should be made to the Registrar of this Tribunal.

[29]Further directions are that the adjourned preliminary hearing should be set down for three quarters of a day to a day, and should not be listed with other preliminary hearings because the Tribunal that hears it will have a fairly large task in taking on board all the arguments and in preparation for that hearing.