Appeal No. EAT/1128/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 March 2001

Before
MR RECORDER LANGSTAFF QC
MR D NORMAN
MRS R A VICKERS

DAVID GOULD	APPELLANT

THE GOVERNORS OF DEVONSHIRE HOUSE	RESPONDENT
PREPARATORY SCHOOL & OTHERS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	APPELLANT NEITHER PRESENT NOR REPRESENTED	

MR RECORDER LANGSTAFF QC

1.	This matter comes before us by way of Appeal from a decision of the Employment Tribunal at London (North) promulgated on 7 August 2000.  The Appellant had complained to the Tribunal that the Respondent was in breach of a contract of employment with him and he complained also of victimisation contrary to section 4 of the Sex Discrimination Act.

2.	The claim for breach of contract was technical in the sense that the Appellant had never actually worked for the Respondent.  He was a teacher who applied for a job at the Respondent.  He was interviewed on 6 August.  His chronology which has helpfully been prepared for the purposes of this Appeal, together with skeleton submissions telling us that he does not propose to be present today, but asking us to take account of what he has written, shows that on 10 August he was offered a job over the telephone and on 14 August received what is described as confirmation of the oral job offer in writing.

3.	That chronology reports that on 16 August he accepted the offer over the telephone.  Accordingly, we proceed on the basis that his contention is that it was the latest offer (that contained in the letter of 11 August) which he received on 14 August, which he was purporting to accept.  That is perhaps a matter of importance as I should describe.  He claimed before the Employment Tribunal and claims in these Appeals that on 16 August there was by virtue of his acceptance a concluded contract.

4.	The facts as found by the Employment Tribunal recite at paragraph 8(iii) as follows:

“By letter of 11 August 1999 Mrs Donovan wrote to the Applicant confirming the offer of employment as a science teacher at the Respondent’s school.  That letter clearly stated the salary as £28,500 per year (less than he was receiving previously and indeed less than he was anticipating) and stated that the offer was subject to the receipt of satisfactory references, receipt of satisfactory clearance of criminal record and government agency checks, satisfactory identification (e.g. sight of passport), and sight of relevant qualification certification.  It was a conditional offer.”

5.	The Tribunal continued to deal with the events of 16 August in these terms at paragraph 8(v):

“On 16 August 1999 a number of things occurred.  There were two telephone conversations that day between the Applicant and Mrs Donovan.  At this stage Mrs Donovan still had not been able to take up the references and was concerned that she should do so, particularly a professional reference.  The Applicant’s telephone conversations with her raised a number of issues, including the fact that the salary offered of £28,500 was not as much as he had been expecting, and the fact that this could have an impact on his current proposals with regard to housing.  Although allegations were made in this regard the Tribunal does not need to make findings of fact any further than this on this particular subject.  However, the Applicant was also raising a number of issues at this stage and this was confirmed when on 16 August 1999 he wrote a letter to Mrs Donovan which starts in the first line: “Thank you for your offer.  I would like to confirm my acceptance subject to a few matters.”  The Tribunal finds as a fact that this is confirmatory of the situation which had been occurring after he had received the conditional offer, i.e. there were a number of matters that he was still clarifying and raising which were to be additional terms of employment as far as he require them.  Some of them were set out in the letter of 16 August 1999 and included guarantees that he would be attending on school trips.  Therefore, the Tribunal finds as a fact that there was no acceptance of the exact terms offered and, indeed, there was no acceptance of the contract offered, albeit that the contract offer was still conditional and the conditions had still at this stage not been satisfied.”

6.	What happened as a matter of fact was that Mrs Donovan spoke to a former head teacher under whom the Appellant had served.  He did not comment favourably upon the Appellant.  Accordingly, on 16 August after having had the conversation she had with him on the phone she wrote to the Appellant to tell him that the Respondent was unable to proceed with the offer of the post.

7.	At page 15 of the bundle, the Employment Tribunal in the light of those findings, concluded in paragraph 10 of their decision, that the original offer which had been made was a conditional offer, and at the time of the letter of withdrawal was written the conditions had not been satisfied.  Further they concluded that even if the offer had been capable of acceptance it had not been accepted.  The letter which the Appellant wrote was in law they thought a counter-offer adding new or varied terms to those he had been offered.  Accordingly, the Tribunal came to the conclusion that there was no binding contract of employment.  

8.	So far as the claim for victimisation was concerned, that arose in respect of the Appellant’s assertion that the reason why the contract failed was because of the actions of Mrs Donovan to decline to proceed with the contract she had made with him (or so he claimed) because she knew of a claim which he had against a former school.  Indeed, it was the school to whose head she had spoken and from whom she had received the unfavourable reference.  The Tribunal found as a fact that that was not the cause of the withdrawal of the offer and therefore there was no causative link between taking the proceedings against the former school and the actions of the Respondent in the present case.

9.	Those findings have given rise as I have already indicated to more than one appeal.  The first, which was framed at a time before the written extended reasons had been received, sought that the Employment Tribunal’s decision be overturned because it had refused to allow evidence to be admitted.  The evidence was material from an Employment Tribunal before which Mrs Donovan had given evidence which it was said was contradictory to the evidence which she had given to the Tribunal on this occasion.  That went to her credibility.  Her credibility was of importance to determine what the true facts were as to what was said in the phone calls of 16 August.  The Appellant was saying that he had made no counter-offer and had accepted the offer made to him, Mrs Donovan was saying the opposite.

10.	When he received the extended reasons, Mr Gould expanded upon that one ground.  He alleged that there had been a failure of process and the decision was not one which a reasonable Tribunal could reach not only because of the failure to disclose documents in advance but because he had not been allowed to produce evidence in rebuttal of the Respondent’s case in respect of the job conversation at which the offer had been made to him, that he had not seen some documents prior to the hearing, that he had been unable to prove certain matters had taken place but that this was setting the standard too high because the Tribunal had declined to draw a negative influence from various matters in respect of the Respondent.  He argued that weight should have been given to a greater extent to witnesses whose statements were not in dispute but were read, that there had been at least two factual errors, and that the letter which is described in his own chronology as having been written on 16 August as confirming various matters and seeking a variation of contract had been regarded by the Tribunal as evidence that there had been no acceptance in law of the offer made to him.

11.	Against this background we have to ask whether there is an error of law.  There would be an error of law if the Tribunal should on the facts as found by them or the facts which ought to have been found by them have determined that there was a concluded contract of employment.  The terms of the letter of offer which it is agreed was sent on 11 August 1999, or at least dated that date, and which it is agreed had not been accepted orally before hand were conditional.  One of those conditions was the receipt of satisfactory references.  Another was satisfactory clearance in various respects.  

12.	“Satisfactory” means, we think, and can only sensibly mean, satisfactory to the employer.  Unless and until an employer is so satisfied the offer remains conditional.  Indeed any concluded contract made on the basis of that offer would be conditional upon the employer being so satisfied.  The employer was not.  It is common ground that the employer was not satisfied even though the Appellant is disappointed.  Accordingly, on this basis alone we would not see there as having been any concluded contract.

13.	Secondly, we do not know any of the details of the proposed contract apart from the salary.  It is plain that a contract to teach at a private school is not necessarily in the same standard form style that one would expect in the public sector.  Where there is a contract to make a contract (which is what the acceptance of an offer subject to those conditions would probably amount to) there will be no contract at all.  If this second ground is right, it too supports the Employment Tribunal’s rejection here of a concluded contract.

14.	Moreover, both those points mean that the nature of the telephone conversation of 16 August is simply irrelevant to the issue.  Any purported acceptance, even if it were unconditional, of that which is a conditional offer, where the condition required the satisfaction of a party, could give rise to no binding agreement.  Such an offer was not or would not have been an offer capable of acceptance.

15.	However, for the sake of completeness we shall deal with the events of 16 August.  The Employment Tribunal plainly had in mind that there was an issue between the Appellant and the Respondent that emerges from the way in which they wrote the decision.  They were in our view entitled to have regard not just to the oral evidence but also the letter written by the Appellant on 16 August which confirms his acceptance :

“Subject to a few matters”

16.	As the Tribunal went on to point out, as a matter of strict law where there is an acceptance which is itself conditional that is no acceptance at all.  The Tribunal were thus, in our view, entitled to come to the conclusion, having listened to the witnesses, which they did, and unless that fact could be falsified it too would be an additional ground for holding that there was here no concluded contract.

17.	The next question is whether or not there had been a process failure the consequence of which is material.  The procedure which the Appellant says should have been adopted would have involved his not being subjected to a number of documents at the start of a hearing and would have permitted his relying upon material showing that Mrs Donovan was contradicting herself by what she had said in another Tribunal.

18.	These criticisms have been answered by the Chairman who says that there was an application on the first day of the hearing with regard to documents which the Respondent had produced as a bundle.  He says that the Applicant was given an opportunity by adjournment for a short time to consider those documents.  The consequence of that was that the Appellant objected to three pages of documents but was happy with the others because he was familiar with them and would be happy to proceed if those three documents were removed from the bundle.  They were.  It appears to have been one of those documents which was removed at his request which contained the evidence which he later sought to reintroduce when it was he thought relevant to the evidence which Mrs Donovan had given.

19.	Since it would have been open to him in any event to question Mrs Donovan about whether she had or had not given evidence to the contrary on another occasion and since on the general laws of evidence her answer as to that would generally speaking be final and would not be capable of dis-proof by some third party source there is little force in his point even if he had been denied the access to the document.  But we do not see in what the Chairman has reported a failure or process such as to vitiate the Employment Tribunal’s decision and to require the decision to be taken anew.  The only relevance would have been to show that Mrs Donovan when she reported what the Appellant had not unconditionally accepted made in writing to the Appellant was not to be relied upon.  That is the highest that it could go.  That would still however leave open the question of the inferences to be drawn from the letter which the Appellant wrote on the same day which appeared to qualify any acceptance he was making and it would not answer either of the first two points upon which we have concluded that there was no binding contract of employment.  It could not answer the question whether there was an offer capable of acceptance at that stage.

20.	For all these reasons, we do not think that there is any arguable point of law here which would justify the Respondents being called upon to present their case before a further hearing of this Tribunal.  We should add only this, that yesterday, in the case of Mellors v RPS Rayner this Tribunal on a preliminary hearing had to consider the question of whether or not a contract had been formed when the offer purportedly accepted that was one conditional upon satisfactory references being received.

21.	This Tribunal concluded that there would be no binding contract even if an offer in those terms had unequivocally been accepted.  We therefore are fortified not only by our consideration of the facts, and the law as it would have seemed to us from first principles, but also by that decision.  Accordingly, this Appeal will be dismissed.