MR WINSTON BREWSTER v 1) FANON TRUST LTD (IN LIQUIDATION) 2) SOUTHSIDE PARTNERSHIP [2001] UKEAT 0346_00_0204

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0346_00_0204Case No Appeal No. EAT/0346/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR WINSTON BREWSTERAPPELLANT1) FANON TRUST LTD (IN LIQUIDATION) 2) SOUTHSIDE PARTNERSHIPRESPONDENT
Before
Mr Recorder LangstaffDate 2 April 2001
[1]APPEARANCES For the Appellant MR W BREWSTER (the Appellant in person) MR RECORDER LANGSTAFF QC This appeal has troubled us because of its bizarre nature, as I shall explain. It is a Preliminary Hearing in an appeal from the Employment Tribunal sitting at London South, extended reasons for which were promulgated on 7 February 2000.[2]The issue was essentially whether or not the Appellant had been an employee of the first Respondent, Fanon Trust, at a time when the undertaking in which he claimed to be employed was transferred to Southside Partnership. The case for the employer was that the contract of employment of the Appellant had ended on 30 September 1998. Accordingly, the second Respondent said, and it was held by the Employment Tribunal, the second Respondent never became the employer of the Appellant. The first Respondent was the only employer that he had.[3]What is bizarre is that it is plain that the Appellant in fact did some work in a capacity in which he had been employed at one stage by Fanon Trust after 30 September 1998. The significance of that date is that that was the date upon which it was agreed that a fixed term contract of employment, which he had had with the first Respondent, came to an end.

(b) provides that an employee is dismissed if:

"he is employed under a contract for a fixed term and that term expires without being renewed under the same contract"
Accordingly, nothing needs to be said, nothing needs to be done. At the expiry of the fixed term, the employee is dismissed. It is only if something is said, or if something is done to create a renewal, that the employee has a contract of employment and remains in employment.[4]Exceptional as it may be, the case for the employer appears to be, we summarise - that they were in such a mess and such a muddle that they did not know that the Appellant was being paid during October. They never authorised his continuation in employment after 30 September and the explanation for his continuing to work without being refused access to his place of work is because the management appears to have been little better than non existent. The way in which the Tribunal put it, because the words that I have used are our words, was this, that:
"….due to the chaos at Fanon Trust, no agreement was reached between Fanon Trust management and the Applicant regarding any extension of his contract beyond 30 September 1998."
They go on then to note that when he purported to carry out work on behalf of Fanon Trust after that date this was without the authority of Fanon Trust management. That is a finding of fact. They find unanimously that there was no meeting of minds between Fanon Trust management and the Applicant regarding extension of his contract beyond 30 September 1998 and go on to say that no agreement to extend the term beyond 30 September 1998 could be construed from the actions of the parties. Rather curiously, the Tribunal goes on to add, in a sentence immediately after the finding at paragraph 7(ii):
"At all times subsequent to 30 September 1998 Fanon Trust management made it clear that they did not regard the Applicant as an employee."
That finding sits very uneasily with the finding at paragraph 6(iv), that: "The Applicant was paid salary in October but this was a mistake and the management of Fanon Trust put a stop to this as soon as they became aware of it." and the two are on the face of it, inconsistent. However, the issue was a clear one. Had there been an extension beyond the fixed term or not?[5]The Appellant has represented himself before us today. He has addressed the facts. He said that he was not a lawyer and the issues of law were those raised on his behalf in a skeleton argument, to which I shall turn in a moment. So far as the facts were concerned, he addressed us cogently and with moderation, emphasising that the facts should have been found by the Employment Tribunal to show that his contract had indeed been extended by agreement beyond 30 September 1998. When we pointed out that findings of fact are for the Employment Tribunal and this Tribunal is bound by the facts found at first instance, except if the Tribunal was perverse in reaching the decision which it did, he indicated to us that that was essentially what he was saying.[6]The problem that we have is that however sympathetic we might wish to be to the Appellant's case, we have to be able to say that it was not open, as a finding of fact, to the Employment Tribunal to conclude that there was no extension of his contract beyond 30 September 1998. That was a factual issue, not a legal one. The Employment Tribunal are entitled to find the facts, that is their job. They listened to the witnesses and they had before them, not only Mr Brewster, but also witnesses called on his behalf. They decided that there was no evidence which they chose to accept that the contract had been so extended. We cannot, however much we might wish to do so, decide that that was necessarily wrong.[7]So far as the issues of law are concerned, the skeleton argument raises again, issues of fact, that there was an extension by express agreement between the first Respondent and Mr Brewster and of estoppel, which again depends upon issues of fact. So far as the skeleton argument relates to matters of law it is submitting something which , we think, may well be at the heart of Mr Brewster's own difficulties in understanding how it is that the Employment Tribunal could possibly have reached the decision it did. There is a submission that where an employee is dismissed, clear words of dismissal must be used. In other words an employee is not dismissed unless he is told that he is dismissed, and if he is not told, he is not dismissed. The difficulty that that submission of law has, and the reason why we cannot accept it, is that that is not the position if the contract is a contract for a fixed term. There the position is different. There is no continuing contract unless there is an agreement to that effect. That is the effect of the law. It is that continuing agreement which the Employment Tribunal was unable to find in the circumstances. As we have indicated, we cannot say that they were perverse in doing so.[8]A review was sought of the decision before the Tribunal on the basis that there may have been some further evidence available in the form of diaries which a Ms Dillon, one of the Appellant's witnesses, had, but which she had not had available to her at the time of the Tribunal. Nobody turned up for the Appellant on that occasion and the review was rejected with costs of £200 being ordered against him. Again we cannot say that on the material before the Tribunal that was not a decision open to them.[9]Accordingly, although, as will be apparent with some regret in the peculiar circumstances of this case, we feel that we have no proper alternative but to find that there is no arguable ground upon which this appeal could be pursued and therefore it will have to be dismissed.