MR D R GOULD v (1) THE GOVERNORS OF HAILEYBURY & IMPERIAL SERVICE COLLEGE (2) THE GOVERNORS OF LAMBROOK HAILEYBURY SCHOOL [2001] UKEAT 635_00_0606

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 635_00_0606Case No Appeal No. EAT/635/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D R GOULDAPPELLANT(1) THE GOVERNORS OF HAILEYBURY & IMPERIAL SERVICE COLLEGE (2) THE GOVERNORS OF LAMBROOK HAILEYBURY SCHOOLRESPONDENT
Before
Mr Justice LindsayDate 6 June 2001
[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE LINDSAY (PRESIDENT) We have before us, by way of an adjourned preliminary hearing, the appeal of Mr D R Gould in the matter Gould against The Governors of Haileybury & Imperial Service College as the first respondent and, as second respondent, The Governors of Lambrook Haileybury School. This matter was last before us on 7 February 2001 and our judgment of that day needs to be read really as part of today's if a fully informed survey is to be made of what we are doing and saying. On that day, 7 February, we gave a judgment which dismissed eleven grounds of appeal as disclosing no arguable error of law but five grounds were adjourned, still for hearing as preliminary hearings because, in our view, further information was needed before a fully informed view could be taken upon them. So today we now deal with those reserved grounds and, using the numbering system which we used last time, the first topic is 6.1 "Revelation of a 'without prejudice' offer" and for this one needs to see paragraph 6 of our judgment of 7 February. Mr Gould has sworn an affidavit on 29 March 2001. It suggests a possibility that the Employment Tribunal's decision of 4 May 2000 derived from a hearing at which without prejudice material had been improperly laid before the Employment Tribunal despite Mr Gould's objection. The Tribunal seems to have dealt with the material as if it was in the public domain. It may be that it had begun life as "without prejudice" material by way of a without prejudice offer but had become, as is not uncommon, an open offer. That might have been unobjectionable but, on the basis of Mr Gould's affidavit, this issue is one as to which we cannot be sure that there is no arguable issue of law and this issue, therefore, we direct to go to a full hearing (6.1).[2]The second heading is 6.2 "Implied Terms", and for this subject one needs to go back to paragraph 7 of our judgment of 7 February. Mr Gould has now supplied an extract from his written closing submissions and his earlier written paper put to the Employment Tribunal headed "Breach of Contract". Some of the reasoning therein is frankly hopeless. Thus he sought to argue at an earlier stage that because he was paid more than he would have been paid in the State sector as a teacher there was an implied term that all his terms and conditions were to be more favourable than any corresponding ones in the State sector. A moment's reflection suggests, for example, that it could have been that he was paid more than the State sector's pay at a comparable level of teaching because his other terms were not as good or were worse than would have been appropriate in the State sector. There is no possible error of law, in our view, in the Employment Tribunal's rejection of Mr Gould's attempt to embody terms lifted from the State sector or from the Education Act in that way.[3]Nor, in our view, is there any reason for an implied term that an employee, ahead of any alleged breach, has to be expressly told, as a matter of contract at or about the time of the formation of the contract, of what will or will not amount to gross misconduct, as to possible modes of dismissal, as is the processes by which, if dismissed, he would be able to defend himself and as to a right of appeal. Doubtless all these things are desirable but we cannot say that there is an implied term in the contract of employment such that those matters have to be expressly dealt with from the outset by being expressly mentioned to the employee at or about the point of contract. There is no point in allowing that issue to go forward to a full hearing despite the Employment Tribunal not having dealt with it because the argument leads nowhere. Insofar as 6.2 so asserts it is dismissed.[4]However, once the employer has asserted there has been a breach of contract by the employee, if the employer nonetheless fails adequately to describe to the employee with what he is charged in terms of breach of contract, how, under the contract of employment, he is entitled to defend himself, as to any provisions of the contract as to what is or is not gross misconduct (if gross misconduct is alleged) and as to any appeal process stipulated for in the contract, there may then be a breach of contract on the employer's part on the ground that unless the employee is so told of his rights, he is effectively denied them. Moreover, if there is room for such an implied term then a breach of that implied term was indeed asserted by Mr Gould at the Employment Tribunal but not dealt with by the Employment Tribunal.[5]We therefore permit to go to a full hearing the issue of whether the Employment Tribunal dealt adequately with Mr Gould's claims that, by reason of an implied term, the employer, once it was asserting breach of contract, became obliged to inform Mr Gould as Mr Gould alleges in his paragraphs 2(a) and 2(b) and that the employer had breached such (if any) implied term.[6]It may be that such consideration adds little or nothing to unfair dismissal in terms of recovery and it may be that the full contract of employment will negate any possible implied term but we permit the limited issue we have described to go to a full hearing. We also allow to go forward to a full hearing the question of whether the Employment Tribunal dealt sufficiently with Mr Gould's allegation that the employer breached the implied term as to mutual trust and confidence. Save in those two respects, as we have indicated, 6.2 is not to go to a full hearing and is dismissed.[7]6.3 is a question of quantum and, if appropriate at all, is appropriate to the remedy appeal. 6.4 should be given the heading "The Respondent's new witnesses" - see paragraph 9 of our judgment of 7 February.[8]In that paragraph 9, we raised questions as to whether Mr Gould had sought an adjournment to cope with the new witnesses that he says were produced by the respondent or sought to exclude their evidence or applied that they should be required to submit witness statements before giving oral evidence. On this point, Mr Gould, in his affidavit, says only this:
"I told the Tribunal that those three witnesses' evidence went well beyond what Mr Hare had said, and that it was unfair because they had heard my evidence before they had even written their witness statements. The Chairman said 'of course they did', and referred to Mr Hare's illness."
[9]There is, as it seems to us, no injustice inherent merely in a witness giving evidence only after he has heard the other side's evidence first and we can see no arguable error of law (and we emphasise it is only errors of law with which we are concerned) in the Employment Tribunal's reception of this evidence from the Respondents' side in the circumstances and so we do not permit this issue of 6.4 to go forward to a full hearing and it is dismissed.[10]The next heading is 6.15 "Decisions not ruled upon by the Employment Tribunal". As to this, see paragraphs 20 and 25 of our earlier judgment of 7 February. 6.15 falls into four parts. Now only 6.15.1 is persisted in, so we dismiss 6.15.2, 6.15.3 and 6.15.4.[11]As to 6.15.1, in his affidavit Mr Gould says:
"Under my contract, in my opinion, my employment cannot have ceased before 31st August 1998 (i.e. the end of the summer term). The tribunal did not deal with this submission, and decided that my employment ceased on 30th April 1998 (i.e. at the end of the previous term). This is particularly relevant to my damages owing to the cap on unfair dismissal awards."
[12]We permit 6.15.1 to go to a full hearing; we think there is there an arguable error of law.[13]Accordingly, to summarise at this stage;6.1 goes to a full hearing;6.2 is dismissed except that there may go to a full hearing the question of whether the Employment Tribunal dealt adequately firstly, with whether there was a breach of the implied term as to informing Mr Gould as he alleges in his 2(a) to (d) once the employer was asserting breach of contract and, secondly, whether there was a breach of the implied term of mutual trust and confidence. 6.4 is dismissed; 6.15.2, 6.15.3, and 6.15.4 are dismissed but 6.15.1 is to go to a full hearing.[14]We would estimate the matters that have been directed to go to a full hearing will take two hours and the skeleton argument should be exchanged not less than 14 days before the date fixed for the hearing .