Appeal No. EAT/305/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 1 March 1995

	Before

	THE HONOURABLE MR JUSTICE BUCKLEY

	MR A C BLYGHTON

	MR J R CROSBY

MRS R BATEMAN	APPELLANT

GOVERNORS OF WEALD OF KENT SCHOOL-	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR G CLAYTON
	(SOLICITOR)
	Hamilton House
	Mabledon Place
	London  WC1H  9BD

For the Respondents	MR J BACON
	(OF COUNSEL)
F Williams
County Hall
Maidstone  Kent

MR JUSTICE BUCKLEY:	This is an appeal against the decision of the Industrial Tribunal held at Ashford on Friday 11 February 1994.  The Tribunal was concerned with a preliminary point, namely whether or not the Appellant, Mrs Bateman, had been dismissed.  That point arose in this way.  The Appellant was engaged as a teacher at Weald of Kent Girls Grammar School.  Her salary was based on the main scale of incentive allowance A as appears from a letter dated 13 February 1990 from the County Council to Mrs Bateman and it is common ground that was, at least initially, her contract of employment.  It was referred to during the hearing as her main contract.  There were, over three years, variations to her scale of renumeration and the reason for those variations was that Mrs Bateman agreed to undertake additional responsibilities and her renumeration was increased to allowance scale C.  

	All that we have recited so far was agreed and we have taken those basic facts from the Tribunal's recital of the agreed facts placed before it.  The final variation which ran out in September 1993, the upgrading was not renewed and for the autumn term Mrs Bateman was employed on the original incentive allowance A.  That gave rise to the suggestion that she had been dismissed.  If that sounds surprising at first blush one goes to section 55 2(b) of the 1978 Act which deals with the expiration of fixed term contracts and provides that an employee shall be treated as dismissed if and only if: 

		"where under that contract[that is a reference to the contract of employment] he is employed for a fixed term, that term expires without being renewed"
	
	Now a Mr Clayton who has argued as strongly as he could for this Appellant, submits that section is relevant here.  That the three variations in fact amounted to three fixed term contracts.  He submitted that all the ingredients were present in any one of those years by reference to the letters of variation, all the ingredients were there to create contractual relations between the parties and that if you looked at the situation during any one of those years you would be driven to the conclusion, the only fair conclusion that, Mrs Bateman was employed under a fixed term contract, fixed for one year.  It is necessary, very briefly, just to have a look at those documents. As we have said the starting point is 13 February 1990 letter, which no one suggests is other than a straight forward contract of employment and is undoubtedly not for a fixed term.  

	There is, it is to be noted, at the end of that document the following annotation;

		"I hereby accept the appointment of full-time Assistant Teacher from 1st September, 1990 on the conditions indicated above and in the letter dated March 19 1990 confirming a temporary C allowance."  

	That was dated 20 March and signed by Mrs Bateman.  It seems to us it is perfectly clear that Mrs Bateman is there accepting an appointment as a full time teacher from 1 September 1990 but it is noteworthy that the annotation does not say from September 1990 to 31 August 1991.  Nor does that contract any where else give that impression.  It is quite clearly not a fixed term contract.  However what is added is that there is a temporary variation in the remuneration. If one goes to the letter of 19 March to which Mrs Bateman was there referring one finds this;

		"Dear Mrs Bateman
		I am pleased to inform you that the Area Director on behalf of the Local Education Authority has approved your temporary upgrading to C with effect from 1 September, 1990 to 31 August, 1991."  

	In the next two years there followed similar variations. They are dated 8 August 1991 and 1 September 1992. They are both in similar or the same terms.  We refer only to one of them, 1 September 1992 and note that it has in it, after formal matters, a confirmation, of: 

		"your temporary upgrading to Standard Scale & Incentive Allowance C" [and there is a reference for that to be in operation for one year and then we quote] "At the end of this period you will automatically revert to your substantive grade unless a further variance occurs."  [and the final three lines of some importance]  "The Finance Department has been asked to make the necessary adjustment to your salary.  All other terms and conditions of service as set out in your current contract of employment will remain unchanged."  

	Now it might be enough to observe that the common sense impression on reading those documents in the circumstances here, drives us inexorably to the conclusion that there was one contract of employment as set out in the first letter to which we referred, 13 February 1990 followed by documents which do know more than they themselves expressly state, that is to vary on a temporary basis the pay scale. Indeed as the document of variation itself asserts when that variation has run its course matters revert to the main contract of employment.  

	That is the view that the Tribunal came to and it is a common sense view with which we entirely agree. If one is to be a little more legalistic about it we would add that the fact that a particular term of a contract is expressed to run for a limited period, and provided that provision is made in the contract for what is to happen when that period comes to an end, it is that term which will expire, not the contract itself.  The contract itself, other things being equal, goes on and that is perfectly plain on the documents in this case. That is exactly what has happened. If one reminds oneself of the terms of section 55 of the Act it is the contract of employment that has to be for a fixed term not just one clause in it however important a clause that may be.  

	So at the end of the day grateful as we are to Mr Clayton's thorough argument we can not conclude that there were here three one year fixed term contracts of employment, as opposed to one contract of employment subject to three bona fide variations.  We stress bona fide only because Mr Clayton did remind us of the provisions of section 140 of the Act. There has not been any suggestion in this case that this was a sham or device to avoid the provisions of the Act. The matter went before the Tribunal on agreed facts which are set out on page 2 of its reasons and there is no suggestion there that this was other than  a bona fide case.  The Representative of the Appellant at that hearing agreed or stated that was common ground.  The temporary upgradings were because Mrs Bateman had agreed to undertake additional responsibilities, additional to her basic duties under her contract of employment. Whatever the position may be if there was a sham case this certainly is not one.  It has never been presented as such, so this appeal must be dismissed.