MR M BOND v SOUTHAMPTON & ORMSKIRK NHS TRUST [2003] UKEAT 0632_03_1310

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0632_03_1310Case No Appeal No. PA/0632/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M BONDAPPELLANTSOUTHAMPTON & ORMSKIRK NHS TRUSTRESPONDENT
Before
His Honour Judge Peter ClarkDate 13 October 2003
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED JUDGE PETER CLARK On 29 January 2003 the proposed Appellant, Mr Bond, presented an Originating Application to the Liverpool Employment Tribunal. In Box 1 he identified his complaint thus:
"Breach of contract. Suffered other detriment. Failure to inform of essential elements of contractual relationship. Directive EEC 91/533"
[2]He named as Respondent Southport and Ormskirk NHS Trust. In his Particulars of Complaint he said:
"An application was submitted for the post of evening clerical officer. An interview was obtained and attended. I was unsuccessful and requested feedback on the 17 th October 2002."
[3]I see from a decision with Extended Reasons given by a Chairman, Miss E R Donnelly and promulgated on 25 March 2003 that on 4 February 2003 the Employment Tribunal wrote to the Appellant pointing out that the Directive referred to an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship, but that the applicant had never become an employee.[4]He was warned that consideration would be given to striking out his Originating Application on the ground that it was misconceived. He did make submissions as to why the application should not be struck out but the Chairman was unpersuaded and made the strike out order under Rule 15(2)(c) of the Employment Tribunal Rules of Procedure 2001.[5]Against that strike out decision the Appellant appealed by a Notice lodged on 6 May 2003. He referred in his grounds of appeal to Section 3(2)(a) of the Employment Tribunals Act 1996 (ETA) which provides that the Employment Tribunal has jurisdiction to entertain "a claim for damages for breach of a contract of employment or other contract connected with the employment,".[6]Such claims are regulated by the Employment Tribunals (Extension of Jurisdiction) Order 1994. Article 3(c) of the 1994 Order requires that the claim arises or is outstanding on the termination of the employee's employment and by Article 3(a) it must be a claim to which what is now Section 3(2) ETA applies.[7]Having considered the Notice of Appeal the Registrar, by an Order contained in a letter dated 18 June 2003, directed that no further action be taken on the appeal in accordance with Rule 3(7) EAT Rules 1993, as amended, on the grounds that the EAT had no jurisdiction to entertain it. By Section 21(1) ETA the Employment Appeal Tribunal's jurisdiction is limited to correcting errors of law by Employment Tribunals.[8]Dissatisfied with that direction the Appellant exercised his right under Rule 3(10) to have the matter referred to me. He developed his submission that his appeal did raise a question or questions of law in his letter to the Registrar dated 20 June 2003.[9]The Rule 3(10) application was listed before me for hearing today, 13 October 2003. The Appellant has not appeared and is not represented. Attempts to contact him by telephone raised no reply.[10]I have considered the most recent correspondence between the Appellant and the case handler here, Mr Mennie. There was some confusion over the Respondent's Notice of Appearance (form IT3). Because the Originating Application was struck out the Respondent was never required to enter an appearance. On 9 September the Appellant raised the possibility of a postponement of today's hearing to determine matters of procedure. He also enquired whether, if he served notice of withdrawal, he could later revive the appeal.[11]By his response dated 12 September Mr Mennie informed the Appellant that if he wanted the hearing adjourned he should make application in writing, with reasons, and it would be considered by the Registrar. No such application has been made.[12]In these circumstances, given the nature of the Appellant's case appearing clearly from his letter of 20 June, I decided to determine this application on the papers.[13]Mr Bond argues that the Chairman was wrong in law to strike out his Originating Application as misconceived in the light of 2 decided cases.[14]The first is the Court of Appeal decision in Wishart v National Association of Citizens Advice Bureaux Ltd [1990] IRLR 393. In that case the Plaintiff, Mr Wishart applied for a post with the Defendants. He was offered the post "subject to the receipt of satisfactory written references". When the references arrived from his existing employer the Defendants were not satisfied and withdrew the offer of employment. The Plaintiff then sought interlocutory injunctions in High Court proceedings restraining the Defendants from appointing another person to the post and requiring them to provide him with employment in the post. The Deputy High Court Judge granted the relief sought on an interim basis, but stayed the order pending appeal.[15]On appeal the Court of Appeal allowed the Defendants' appeal and discharged the injunctions. The Court was not satisfied that the Plaintiff had a strong case that he had entered into an effective contract of employment, but even if that case was arguable it was not a case for a mandatory injunction requiring the Defendant to employ him pending trial. That would be to require a Defendant to employ a person in whom it did not have the necessary trust and confidence. cf Powell v London Borough of Brent [1987] IRLR 466 (CA)[16]I have set out the circumstances of that case in a little detail so as to put in context an observation made by Ralph Gibson LJ (paragraph 31) on which the Appellant relies in the instant case. His Lordship said:
"I will assume without deciding that there was in this case a conditional contract."
[17]The second case is a decision of the Employment Appeal Tribunal, Keene J (as he then was) presiding; Sarkar v South Tees Acute Hospitals NHS Trust (1997) IRLR 328 . There, the Applicant Ms Sarkar applied for and was offered a post with the Respondent NHS Trust. On 25 August 1995 she was sent a letter of appointment, to start work on 1 October. However, before that date the Respondent withdrew the offer.[18]The issue before the Employment Tribunal was whether there was jurisdiction to entertain her complaint of breach of contract, by reference to what is now Section 3(2) of the Employment Tribunal Act and Article 3(c) of the 1994 Order. The Employment Tribunal held that although she had entered into a contract of employment with the Respondent, hers was not a claim arising or outstanding on the termination of her employment because she had not taken up that employment before the Respondent's (anticipatory) breach occurred.[19]The Employment Appeal Tribunal took a different view, holding that the Employment Tribunal below was right to find that the parties had, by offer and acceptance, entered into a contract of employment, but wrong to hold that the claim for breach did not arise on termination.[20]Mr Bond seeks to rely on those 2 earlier authorities for the proposition that there was a contractual relationship entered into between himself, as job applicant and the NHS Trust as interviewer, assessor of his application and potential employer. It is, he submits, impossible to argue that a job interview is not in connection with employment.[21]Whilst having some admiration for the ingenuity of the argument, like the Chairman below I am satisfied that it is wholly misconceived on the facts as set out in his Originating Application. As a result of that interview he was not made a conditional offer of employment (cf Wishart ) nor did the parties in fact enter into a contract of employment, albeit with performance delayed (cf Sarkar ). Instead his application was rejected. It follows that there was no contractual relationship entered into between these parties.[22]Although a job interview is connected with (potential) employment the requirement of Section 3(2)(a) ETA to found the Employment Tribunal's jurisdiction is that the claim is for damages for breach of a contract of employment or other contract connected with the employment. On the facts of the present case there was no contract.[23]It is also the case that the claim for breach did not arise and was not outstanding on the termination of the Applicant's employment (Article 3(c)). There was no employment.[24]Finally, EEC Directive 91/533. Article 1 provides that that Directive (implemented into domestic law by Part I Employment Rights Act 1996 (ERA)) applies to every paid employee having a contract or employment relationship defined by law enforced in the Member State. Even assuming, which I doubt, that the Applicant could bring a free standing claim under the Directive against the Respondent, as opposed to a complaint under Part I ERA, for the reasons given I am satisfied that under English law he did not have a contract or employment relationship with the Respondent.[25]In these circumstances I shall dismiss this Rule 3(10) application.