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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCullagh v LBM Direct Marketing [2008] NIIT 2001_07IT (08 August 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/2001_07IT.html Cite as: [2008] NIIT 2001_7IT, [2008] NIIT 2001_07IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2001/07

CLAIMANT: Nichola McCullagh

RESPONDENTS: 1. LBM Direct Marketing

2. Office Angels Limited T/A OA Call Centre

DECISION

The decision of the tribunal is that the claimant's claim for breach of contract is dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Mrs Ó Murray

Appearances:

The claimant did not appear, having e-mailed to say that she would not be in attendance, and was not represented.

The first-named respondent was represented by Mr B Crooke, of that respondent company.

The second-named respondent was represented by Mr R Shields, Barrister-at-Law, instructed by McKinty & Wright, Solicitors.

Introduction

1. The claimant did not appear at the hearing having sent an e-mail to the Tribunal Office on 30 June 2008 indicating that she would not be in attendance but that she wished the hearing to go ahead in her absence.

The claim

2. The claimant's claim was for breach of contract under the Industrial Tribunals (Extension of Jurisdiction) Order (Northern Ireland) 1994.

The issue

3. The issues for the tribunal were:-

(i) whether the claimant had formed a contract with the first-named respondent either directly or through an agent;

(ii) whether OA was acting as such an agent;

(iii) whether that contract had been breached; and

(iv) what was the financial loss flowing from any breach of contract.

4. The claimant's claim, as outlined on the claim form, comprised the following statement:-

"Had applied for Outbound B2B Level 2. Was informed that I had got the job. Resigned from former job. Arrived to LBM on the Monday to find out that I hadn't got the job after all."

5. OA in its response form confirmed the claimant's version of events stating as follows:-

"As a result of an administrative error in the respondent's office the claimant was not advised that she had only been successful for the Level 1 role. The respondent only communicated to the claimant the start date provided by LBM of 29 October 2007. The claimant attended LBM's premises on the start date provided by LBM and upon arrival was advised that she had not been successful for the Level 2 role."

6. Counsel for the second-named respondent (OA) applied to have the claim struck-out firstly, because of the claimant's failure to attend and secondly, on a jurisdictional point. Counsel contended that the claimant's failure to attend meant that she could not discharge the burden of proof in her claim. The jurisdictional point was that OA should not be joined as a party to the proceedings as it was not the claimant's employer and as such could not be a party to breach of contract proceedings which could only be brought by an employee against his employer. Mr Crooke for LBM applied to have the claim struck out as the claimant was not in attendance and LBM had no contract with her.
7. I considered Rules 14(5) and (6) and Rule 27(5) and (6) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. Rules 14(5) and (6) allow for a party to make written representations to the tribunal. Rules 27(5) and (6) allow the tribunal to dismiss or dispose of proceedings in the absence of a party but it must first consider any information made available to it by the parties.
8. As the claimant's bare outline of events had been confirmed by the second-named respondent's response form, I did not feel that it was appropriate to strike-out the claimant's claim for failure to attend at the hearing to prosecute her claim. Whilst the burden of proof was on the claimant in the claim, there was enough agreed information in the papers for me to seek further clarification of the circumstances in which the claimant found herself attending at LBM's premises believing that she had a job having given up another job. I also decided to reserve the decision on the jurisdiction point until I had ascertained some further information on the contractual relationship between the two respondents.

The law

9. The tribunal's breach of contract jurisdiction is set out in the Industrial Tribunals (Extension of Jurisdiction) Order (Northern Ireland) 1994. Under the Order an employee may bring proceedings before an Industrial Tribunal to recover damages in respect of a claim which arises, or is outstanding, on the termination of the employee's employment. There are several exclusions outlined in the Order none of which apply in this case. An obvious prerequisite of a breach of contract claim is that an employment contract was in existence between the claimant and the employer.
10. The case of Sarker v South Tees Acute Hospitals NHS Trust [1997] IRLR 328 is an EAT decision where the claimant was held to have a claim for breach of contract under the equivalent legislation in Great Britain, even though she had not actually started her employment with the respondent. In that case, Ms Sarker was sent a formal letter of appointment together with particulars of employment with a start date some weeks after the date of the letter. The offer of employment was withdrawn before the start date and the respondent claimed that there was no contract of employment in place and that the tribunal therefore had no jurisdiction to hear a breach of contract claim. The EAT held that the claimant was covered by the legislation because she had entered into a contract of employment even though she had not actually started performing the appropriate duties. The EAT referred to the definition of "an employee" under the Employment Rights Act whereby it includes an individual who has entered into a contract of employment. The equivalent legislative provision in Northern Ireland is Article 3 of the Employment Rights (Northern Ireland) Order 1996 which states that "an employee": "means an individual who has entered into or works under (or where the employment has ceased worked under) a contract of employment."
11. An agency situation can arise where a principal appoints an agent to act on his behalf to effect a legal transaction. Express authority is granted to an agent by contract between the principal and agent. Implied authority can arise where it is possible to infer an implied agreement to act as agent from the conduct of, or relationship between, the principal and agent. Ostensible authority can arise where the alleged principal makes a representation by conduct or otherwise to a third party that the person is authorised to act as his agent and the third party relies on that agreement.

Sources of evidence

12. The tribunal heard evidence from Mr William Crooke, the Recruitment Executive for LBM; from Mrs Helen McGahan, Recruitment Consultant with OA, and Mr James Orr, Area Manager, for Office Angels, Call Centre Specialist Division. The tribunal also had the documents produced by the respondents at hearing together with the claim form and response forms.

Findings of fact

13. LBM is a Call Centre Direct Marketing Organisation whose business involves a mixture of "business to business" contact and "business to consumer" contact.
14. LBM has two levels of employees. Level 1 employees are involved in inbound customer services dealing with, for example, queries and complaints from customers of LBM's client companies. Level 2 employees are involved in "cold calling" that is, selling products on the telephone for LBM's client companies. Level 2 employees command a higher rate of pay and it is therefore harder for a candidate to qualify for this level of post.
15. LBM has an agreement with ten agencies in Northern Ireland whereby the agencies source people for LBM. OA is one of those agencies.
16. LBM and OA have a service level agreement whereby LBM appointed OA Call Centre "for the supply of permanent and (or temporary) staffing solutions for the Belfast Contact Centre".
17. The procedure at the time relevant for this case was as follows. OA would screen potential candidates for LBM and if they felt that they were suitable would fax the information on the candidate to LBM. LBM would call the candidate into their premises would have them fill in an application form and they would do a numeracy test. If they passed the numeracy test they would be called back to LBM for a second interview and if successful LBM would tell OA the result and OA would communicate to the applicant whether they were successful at Level 1 or Level 2 and would give them the start date.
18. OA had no authority to offer jobs on behalf of LBM. OA's service to LBM was to source candidates, to screen them, and put them forward to LBM for assessment and interview. OA's fee was payable once the candidate started the job. OA received no fee from LBM if the candidate did not show up.
19. The claimant was sent to LBM by OA to do the assessment test. Her score on the test was not high enough for a Level 2 post but it was high enough for a Level 1 post. At that time there was no Level 1 work. LBM had told OA that the claimant had not been successful in the assessment tests for Level 2.
20. OA mistakenly advised the claimant to start with LBM on the same date as two other individuals who had been successful in the assessment test for Level 2 posts were to start. LBM knew nothing about this communication between OA and the claimant. The first LBM knew of it was when the claimant appeared at their premises thinking that she was to start a Level 2 post. She was told that there no job for her and was sent away.
21. LBM did not, at any stage, have any direct contact with the claimant in relation to the post on 29 October 2007. Their only contact with the claimant had been in relation to the assessment and interview. OA had no authority to tell people that they had a post without being told by LBM that such a post was available.
22. When LBM would tell OA that an individual could start, OA would send a letter to that individual to confirm the start date and time and to confirm the offer by their client, LBM, subject to passing references.
23. The claimant was later taken on by LBM for a Level 1 position which she started on 19 November 2007 but left after two days. The relevance of this post to this claim is in relation to the way the claimant was engaged. LBM on that occasion contacted OA to give them a start date for the claimant. OA e-mailed the claimant to give her the start date of 19 November 2007. The claimant attended on 19 November 2007 and was given a statement of terms and conditions of employment which she signed on that date.

Conclusions

24. The evidence before the tribunal was clear that LBM did not make a direct offer of employment to the claimant in relation to a start date of 29 October 2007. In addition, LBM did not tell OA that the claimant had an offer of a job to start on that date. On the contrary, LBM had told OA that the claimant had not been successful in the assessment test. Due to a mistake by OA, the claimant was advised of a start date together with two candidates who had been successful in the assessment process. The issue for the tribunal therefore is whether OA was acting as agent of LBM in telling the claimant that there was a start date and did that amount to an offer of employment which was accepted by the claimant who gave notice to her employer to enable her to start on the date that she had been notified.
25. There was no evidence before the tribunal that OA were agents of LBM in relation to offering employment to individuals. It was for LBM to make a decision to offer employment and to decide on the type of employment and the salary to be paid. In this case they made no offer of employment and the fact that OA erroneously communicated a start date to the claimant does not mean that a contract was formed between her and LBM at that point. There was no evidence that OA had authority to bind LBM in any circumstances. There was no evidence to lead me to infer an implied agreement based on the conduct or relationship between LBM and OA. OA therefore could not bind LBM in a contract with the claimant.
26. Essentially OA's role was to line up people for LBM and LBM would then assess and interview and decide whether to make offers of employment to them. On the evidence before me, the fact that OA communicated a start date to individuals did not amount to a binding contract of employment. This is underscored by the fact that the successful candidate only received their statement of terms and conditions of employment on their first day with LBM when LBM staff went through the details of their terms and conditions and the documents were signed by the employee. This situation therefore differs from that in the Sarker case where the claimant was sent a letter of appointment and terms and conditions of employment before the start date.
27. In this case, therefore, no contract of employment was formed between the claimant and LBM and she therefore has no claim against LBM for breach of contract.
28. The claimant made no claim that there was any contract of employment between her and OA and there was no evidence to suggest such a contract. As OA was not the claimant's employer, the claim against OA is dismissed as the tribunal has no jurisdiction to hear a breach of contract claim unless it is between an employee and his or her employer.
29. The claimant's claim against both respondents is therefore dismissed.

Chairman:

Date and place of hearing: 2 July 2008, Belfast

Date decision recorded in register and issued to parties: