MISS T C VON GOETZ v ST GEORGE'S HEALTHCARE NHS TRUST [2001] UKEAT 626_99_1810

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 626_99_1810

Case No Appeal No. EAT/626/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS T C VON GOETZAPPELLANT

ST GEORGE'S HEALTHCARE NHS TRUSTRESPONDENT

Before

Mr Justice Lindsay

Date 18 October 2001

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondent MR A LYNCH QC Instructed by: Bevan Ashford Solicitors 1 Chancery Lane London WC2A ILE MR JUSTICE LINDSAY (PRESIDENT) This second appeal is, again, a full hearing; again the parties are Miss Goetz as the Appellant, and St George's as the Respondent. This time the appropriate number is

EAT/0626/99

and we now go into judgment on that case. The representation is still the same in the sense of Mr Lynch being Counsel who appears for St George's and Miss Von Goetz does not attend. We will not set out the procedural background which we set out in the first Appeal, A, that we have just dealt with, but it is to be taken as being read into this judgment as well as in that one.

[2]This time the appeal is against the Decision of a full three person Employment Tribunal sent to the parties on 4 March 1999. The Tribunal, under the Chairmanship of Mr I S Lamb, sitting at London South with Mr Austin and Mrs A F Martins OBE, held as follows:

"The unanimous decision of the Tribunal is that the Applicant is not entitled to complain of unfair dismissal because of the application of section 197 of the Employment Rights Act 1996 to her dismissal."

[3]The issues which the Tribunal were then dealing with are set out in paragraphs 1 and 2 of the Extended Reasons which were sent to the parties on 4 March 1999:

"1. THE ISSUE The issue which arises for determination by this decision is whether the Applicant was employed under a contract of employment to which the provisions of section 197 of the Employment Rights Act 1996 applied, so that she is unable to pursue her complaint of unfair dismissal. PROCEDURAL HISTORY That issue for determination was specified as a preliminary issue at an interlocutory hearing held on 16 July 1997. A further preliminary issue was identified, whether the Applicant was entitled to complain that she was dismissed for a reason which fell within section 100 of the Employment Rights Act 1996. The hearing of those two preliminary issues took place on 10 October 1997 before the Chairman of this Tribunal sitting alone. He reached a decision on the issue under section 100, and that has now become the subject of a pending appeal. He did not reach a decision on the section 197 issue, because he considered it to be a question of mixed fact and law which should be determined by a full Tribunal. At that time, a hearing of the case was due to begin on 19 January 1998, encompassing the complaint made in the Originating Application of discrimination on the grounds of sex. The parties then agreed that 21 and 22 January should be set aside for the preliminary hearing of the section 197 point, in place of that full merits hearing."

There was a hearing over six days, one of which was the Employment Tribunal being in Chambers, spread over an exceptionally long period, from 21 January 1998 to 27 January 1999. The Decision was sent to the parties on 4 March, as I mentioned, and I have already cited what it was. Miss Von Goetz lodged a Notice of Appeal on 15 April 1999.

[4]Section 197 which is referred to in the Decision has been amended. At the material time it provided at subsections (1) and (2) to much the same effect as had section 142 of the Employment Protection (Consolidation) Act 1978 and again, that can be taken as read from page 885 of the 8 th edition (not the current 9 th , but the 8 th edition) of Butterworths Employment Law Handbook. Part 10 of that Act is the part dealing with unfair dismissal, and it includes, at section 94, (1) the employee's right not to be unfairly dismissed.

[5]The questions therefore needing to be answered by the Employment Tribunal are thus these: was Miss Goetz's contract one of employment? Was it for a fixed term? If so, was it for one year or more? Was there a dismissal, bearing in mind section 95(1)(b)? Did the dismissal consist of the expiry of a fixed term without its being renewed? Had Miss Von Goetz agreed to exclude the right not to be unfairly dismissed in relation to her contract; if so, had she so agreed before the expiry of the contract? It was not in issue but that the contract was, indeed, one of employment, nor, given section 95(1)(b), can it be said that there had not been a dismissal.

[6]The Employment Tribunal began to look at features that might or might not have amounted to a contract; thus in their paragraph 10 they refer to Clause 1 of a document that said:- "(a) I am instructed by the South Thames (West) Regional Health Authority to confirm the offer of an appointment as rotating part-time Registrar in Neurosurgery to the St Georges Hospital Healthcare Trust commencing on 25 November 1994 for a period of one year in the first instance. (b) The date of the start of your period of continuous employment is 25 November 1994." Added to that, they said that on the following page was:

"I hereby accept the offer of appointment mentioned in the foregoing letter on the terms subject to the conditions referred to in it. I agree to exclude my right to any claim under section 54 of the Employment Protection (Consolidation) Act 1978 in respect of the termination of this contract which consists only of the expiry of the fixed term without its being renewed."

A little later, in their paragraph 15 they say:

"On 10 March 1995, the Applicant returned the Contract of Employment to which we have referred, having signed it and dated it 10 March 1995, but under her signature she wrote in the following:"

And then they refer to a letter which was added, and part of that letter said:

"Although I am very happy to see that the contract has been issued for one year, it seems better to clarify this with you. If all members of the committee are happy with one year, I certainly should be, but in fairness perhaps it should be discussed again."

And then the Tribunal records in their paragraph 16:

"There was no reply to that letter of 10 March. That is how matters remained."

[7]There was a break for maternity leave from 17 February 1995 to 15 February 1996 and there was a transfer, as at 1 April 1996. Dealing with the first of those, the Tribunal said:

"During that time," (that is the absence during maternity leave) " her contract had been in suspension, and the period of one year referred to in her written contract was treated as expiring in November 1996"

And then, as to the transfer, they said, in paragraph 19:

"19. With effect from 1 April 1996, the Applicant's Contract of Employment was transferred to St Georges Healthcare NHS Trust, the Respondents. It was a transfer under the Transfer of Undertakings (Protection of Employment) Regulations 1981. All terms and conditions including continuity of service were preserved and protected."

And that was explained, it would seem, by the NHS Executive at the time. The Tribunal refers to a letter which said inter alia:

" "……your contract will remain as it stands but will be with the new Trust "."

[8]Then there were further proposals made on or about 13 March 1996. They included, as cited by the Employment Tribunal:

" "….the duration of the employment contract will be the duration of the training placement with a particular trust. ""

A little later:

" "….the employer, on the advice of the postgraduate Dean may extend the employment contract in limited, specified circumstances e.g. to cater for changes from and to part-training patterns and for trainees who are making slow but acceptable progress. ""

And a passage which begins: " " Entry to SPR"" [ that is Specialist Registrar Training or those undergoing it] "training programmes before 1 April 1996 in the Vanguard Specialties will not, in the majority of cases, have involved a change of employment contract. As a special arrangement, wherever possible, SPRs will have remained on their existing employment contracts in whatever grade they were immediately before entry to the new training system. The existing contracts will, on 31 March 1996, be transferred from a Regional Health Authority to a Trust." " And the Tribunal held: "31. We find that the wording of the written contract constituted a contract for a fixed term of one year. That is the natural meaning of the words "for a period of one year in the first instance"; and, perhaps more importantly, it was the understanding of the parties. Miss Von Goetz herself referred in her letter of 10 March to being happy to accept "one year". " The Tribunal pointed out that Miss Von Goetz had: "signed the declaration which stated in clear and simple terms that she was waiving her right to claim unfair dismissal." They said, in their paragraph 32: "………..The issue we have to decide is whether the contract from which the Applicant was dismissed was or was not the contract under which she was originally employed and containing the waiver clause. It is clear to us that in 1996, it was contemplated on all sides that the contract which was being allowed to expire on 30 November was the original contract. It was expiring because it was limited to one year, save as extended by the maternity leave. Those were contractual arrangements which existed before and after 1 April 1996. 33. It is perfectly clear to us that the contractual arrangements into which the Applicant entered were made on the basis that her training would continue separately and independently of her employment position, i.e it would continue whichever trust employed her. The training element did not constitute a contractual term which contradicted the express provision that her employment was for a period of one year" And a little later: "34. The reality of the position is that she signed the waiver clause knowing perfectly well what it entailed, and when her contract was due to expire she understood clearly that it was the expiry of the original fixed term, as extended."

[9]We have been unable to see any errors of law in the matters to which we have so far referred. The Employment Tribunal seems to us to have come to the only conclusion which could properly have been arrived at. However, Miss Von Goetz raises issues of a procedural kind in her Notice of Appeal. It will be remembered that the case took five to six days, one in Chambers, spread over more than a year. The Employment Tribunal explained that in paragraphs 3, 4 and 5 and 6 of their Decision on pages 5 and 6 of our green bundles:- "3. The hearing before the full Tribunal on this preliminary issue therefore began on 21 January. The Tribunal heard evidence from Mr Colin Watts, the Respondent's Director of Human Resources, followed by the testimony of Miss Moore, Consultant Neurosurgeon at the Respondent's Atkinson Morley Hospital. That evidence began in the late afternoon, and continued on the morning of 22 January. Her cross-examination by the Applicant lasted throughout the morning of 22 January. At that point, it became apparent that the hearing would be part-heard. Another witness, Doctor Goldberg, was waiting to give evidence. The Tribunal decided in the circumstances to curtail the cross-examination of Miss Moore at the end of the morning session. In the afternoon the evidence in chief of Doctor Goldberg began and was thought to be concluded. However, when the case resumed on 13 May, her evidence in chief was extended. The Applicant cross-examined Doctor Goldberg during the afternoon of 13 May, and then gave evidence herself throughout 14 and 15 May. 4. The adjourned hearing having been completely taken up by the testimony to which we have referred, the Tribunal then directed that the parties put their submissions in writing, to be considered by the Tribunal at a hearing in chambers on 2 July 1998. That hearing was postponed to 28 August 1998, for reasons which were set out fully in writing and promulgated on 17 July 1998. Unfortunately, the Tribunal was unable to consider the decision on 28 August because Mrs Martins fell ill. Happily, she recovered and was able to completely fulfil her responsibilities to the case at the chambers hearing on 27 January 1999. 5. The hearing on 2 July 1998 was postponed to provide the Applicant with the extension of time for which she applied to lodge her written submissions. She lodged some submissions on 1 July, which she stated to be incomplete. Thereafter, she never did lodge any further submissions in writing. She made other interlocutory applications in respect of which the Tribunal has set out its views in another written decision. 6. The purpose of summarising the procedural history as we have is to explain the delay which has taken place in concluding the hearing of this issue; to explain the context in which the submissions from the Applicant have been limited in extent; and to note the curtailing of the Applicant's cross-examination of Miss Moore, about which the Applicant has complained in letters to the Tribunal, and about which she protested at the time. Considering that the Applicant was given two days in which to set our her own evidence and argument, and considering that the time allowed to the Applicant to cross-examine Miss Moore was adequate if she chose to use it effectively, the Tribunal did not, and does not, consider that any injustice was caused to the Applicant, by this exercise by the Tribunal of its power to control the proceedings."

[10]Miss Von Goetz fails to indicate what fact of any possible relevance might, had yet more time been afforded to her with her evidence or in the cross-examination of St George's witnesses, have emerged which could possibly assist her. The point before the Tribunal, notwithstanding the time it took, was a relatively limited one with no great room for evidence. Nor does she indicate in her Notice of Appeal what point of law , had even more consideration been given to the case, could have come to her aid. We have read her Notice of Appeal; it is spread over several pages. The only averment that descends to any detail is her sub-paragraph 5 where she says the Employment Tribunal:

"….. appeared to have based part of their decision on an extract of the transfer and transition regulations, cited at paragraph 21, which did not apply to the applicant as the applicant was not in one of the Vanguard Specialties which underwent transition in late 1995; the applicant's specialty did not undergo transition until 1 July 1996."

But the Employment Tribunal did not say that she was within the Vanguard Specialties. The fact that the majority of Vanguard cases involved no change of employment contract does not go at all to prove that other cases did involve a change of contract, still less that the change affected the fixed nature of the term and the contracting out of unfair dismissal, which was a feature of Miss Von Goetz's contract.

[11]In Miss Von Goetz's absence we have sought to scrutinise her Notice of Appeal and argument generally as carefully as we can to find error of law in the Tribunal's reasoning. We have found no error of law and we must therefore dismiss that appeal.