MR R W MELLORS v RPS RAINER [2001] UKEAT 760_00_1503

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 760_00_1503Case No Appeal No. EAT/760/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R W MELLORSAPPELLANTRPS RAINERRESPONDENT
Before
Mr Recorder Langstaff Mr D J JenkinsDate 15 March 2001
[1]APPEARANCES For the Appellant MR NICHOLAS D HART Solicitor Advocate Instructed by Messrs Slee Blackwell Solicitors 10 Cross Street Barnstable Devon EX31 1BA MR RECORDER LANGSTAFF QC This Appeal comes before us by way of Preliminary Hearing, against the decision of the Employment Tribunal sitting at Birmingham. The Extended Reasons for which were promulgated on 12 May 2000. Reasons in summary form had been delivered some months earlier.[2]The Appellant, claimed for breach of contract, he not having been employed for sufficient period of time to claim any statutory rights in respect of his dismissal. Since the case for the Respondent was that he had never worked for the Respondent as an employee, one might ask how the claim arose.[3]The circumstances which emerged from the facts recited by Employment Tribunal show that the Appellant applied for the position of Court Information and Support Co-Ordinator at the Hereford and Worcester Magistrates Court in the employment of the Respondent. He was interviewed for that post and on 5 February 1999 an official letter was sent to him substantially repeating much what had earlier been informally written to him. It said:
"I have pleasure in confirming our offer of employment as Court Information Support Co-Ordinator, as a Sessional Worker with our Rainbow Project at Worcester, with the effect from 16 February 1999. This offer is subject to receipt of satisfactory references, which are now being taken up, and to a satisfactory police check which I understand is being done locally to you by the Probation Service. Once we have received satisfactory clearances (I emphasise these last 2 words) we shall be in a position to send you a formal sessional contract of employment. We look forward to welcoming you to RPS Rainer"
[4]The case for the Appellant is that once that was accepted, which we were told that was no later than 10 February there was a contract conditional only upon the receipt of satisfactory references and a satisfactory police check.[5]Moreover, it is the Appellant's case as it has been presented to us by Mr Hart today that a satisfactory police check meant in the circumstances and could only be one which confirmed information which the Appellant had given to his would be employers at interview.[6]Part of the difficulty that the decision of the Employment Tribunal has given rise to is contained in paragraphs 5 and 6 of the Extended Reasons "It does not appear that the Applicant gave information about his convictions at the interview or at any time prior to the letter of 5 February. In fact he had a number of convictions and had not long before applying for the post served a sentence of 21 months imprisonment."[7]It is however quite plain that contemporaneous documents coming from the employer suggest not only that the Applicant mentioned that he had at least one conviction but that he had more than one. He says and has always maintained that he was fully frank about his convictions and that view appears, again, to be confirmed by contemporaneous documentation.[8]The finding of fact by the Employment Tribunal is thus inexplicable on any rational view of the material before them. If this appeal had rested on questions of fact we would have had no hesitation in granting the permission to move to an Inter Partes Hearing for which Mr Hart contends.[9]However, the appeal has to be on a matter of law and not one of fact. An essential legal basis for the claim is that the Appellant was an employee and so entitled to payment for a notice period which payment he did not receive. This involves the proposition that an offer which is expressly conditional upon a satisfactory policy check and, in another phrase, upon "satisfactory clearances" constituted an offer capable of acceptance such that if and when accepted and the condition was fulfilled there was a contract.[10]The first problem that Mr Hart would face on behalf of the Appellant would be persuading a Tribunal that the condition had ever been satisfied because the word 'satisfactory' must, we think, in the context mean satisfactory to the would be employer. On one matter it is plain there can be no dispute, that this employer declared himself not satisfied having conducted the policy check or having had it conducted by the probation service and considered the results.[11]Whether that was fair or unfair, whether it corresponded with what one might reasonably have expected the employer to do, or not, seems to us to be beside the point if the condition was that the employer should be satisfied. Even if one regarded matters as having got as far as a contract, it was a contract subject to a condition. For that condition to be fulfilled the employer had to be satisfied and he was not. It would seem to us that on that ground alone there would be no arguable prospect of success on this appeal.[12]However, there are further reasons too for thinking that this appeal would be doomed to failure. First, the third paragraph of the letter which I think quoted says once we have received satisfactory clearances we shall be "in a position to send you a formal sessional contract of employment" . This appears to be a contract, if it one, to enter a contract. Mr Hart accepts that the law presently is that except in the most exceptional of circumstances that would be no contract at all.[13]Thirdly, the essence of the Appellant's case is that he was entitled to a six month notice period. There is no document which records this. We were told that the advertisement for the post said it would for a six month period. It is well known and fundamental principle of contract law that where an important and possibly essential provision in a contract has not been agreed between the parties to the purported contract there is in general no contract at all. A provision as to the term of a contract or as a to any notice period within that term by which it might be terminated seems to us one of the essential requirements of a contract of employment.[14]There are circumstances in which it is true to say that employments which arise from informal hirings may be subject to implied notice periods. But where the contention for the Appellant is dependent upon there being a six month period the absence of any written document which so offers and so prescribes is, it seems to us, yet a further indication why this Employment Tribunal were correct and could only have been correct in deciding that he was not an employee so as to maintain his action for breach of contract.[15]I should add finally that we are not unhappy to reach this conclusion because the Employment Tribunal record that on 28 May the Respondent made a good will payment to the Appellant representing the sum of four weeks notice. One of the curiosities of the case is that although there was no formal written contract ever entered nor formal document ever given to the Appellant he did actually do some work - it appears between 16 February 1999 when the letter indicated that he might be taken on and 8 April 1999 when the Employment Tribunal record that his employers wrote to tell him that they would not employ him pursuant to the interview.[16]The basis upon which he did work for them is not clear. If one were to assume in his favour that it was as employee that would be subject inevitably if it were terminated to a period of notice. It is impossible to think that any reasonable maximum period of notice would in the context be as much as four weeks. Indeed had the six month term existed Mr Hart concedes that even in such a case there would be ambiguity about whether the term might have been brought to an end earlier by notice. One of the features of the law which he told me that the Appellant would wish to have determined definitively by the highest authority is the apparent inconsistency between a contract being made for a fixed term yet being determinable on notice.[17]Nonetheless, it is well established by Court of Appeal authority, therefore binding on us, that it is not inconsistent with there being a fixed term that the contract should be terminable on notice. In general, if we were to imply terms into any contract not otherwise in writing which was for a period of months one would imply that it was terminable on notice and again if that were so it would appear that the Appellant here would have received from his would-be employer at least as much if not more than he would have been entitled to had any claim for damages proceeded to the assessment of those damages.[18]That, of course, is not a reason for coming to the conclusion that there is no arguable basis in law for this appeal to proceed further but it is as I have said a reason for feeling happy to be able to reach that conclusion. For those reasons we dismiss this Appeal.