Appeal No.	 EAT/406/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 March 2001

Before
HIS HONOUR JUDGE PETER CLARK
MRS A CALLICO
MR G H WRIGHT MBE

MR W S FOWLER	APPELLANT

DUDLEY COLLEGE OF TECHNOLOGY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	THE APPELLANT
In Person	
For the Respondent	MR SHEPPARD
Representative
Instructed by
Management & Personnel Services
St Jame’s House
Frederick Road
Edgbaston
Birmingham
B15 1JJ	

JUDGE PETER CLARK

1.	The Applicant, Mr Walter Fowler commenced employment with the Respondent College as a part-time lecturer in 1991.  He was recruited to establish a Diploma course for students seeking qualification granted by the Chartered Institute of Marketing (CIM).  There are 3 levels of qualification; in ascending order, Certificate, Advanced Certificate and Diploma.

2.	His employment continued until 6 September 1998 when, 3 days before term was due to begin, he wrote to the Head of Faculty, Pat Woolford, informing her that because the Diploma course was not on offer and had been discontinued without reference to him, the College was in breach of his employment contract and he claimed pay in lieu of notice and mentioned redundancy.

3.	He followed that letter with an Origination Application, presented to the Employment Tribunal on 22 September 1998, in which he complained of breach of contract (dismissal without notice), redundancy and constructive unfair dismissal.  Central to each head of claim was his contention that he had been constructively dismissed, that is to say, the Respondent was in fundamental breach of contract entitling him to treat himself as discharged from further performance and that in response to that breach the Appellant had terminated his employment.

4.	The Respondent resisted the claim.  They said that he had not been dismissed.  On the contrary he had been offered work for the academic year 1998/99; there was no breach of contract.  It was the Appellant who had breached the contract by his abrupt decision not to continue teaching at the College.

5.	The case was heard by an Employment Tribunal sitting at Birmingham on 17 December 1999 and 14 January 2000.  As appears from that Employment Tribunal’s decision, promulgated with Extended Reasons on 17 February 2000, they identified these issues for determination:

	(1)	what were the relevant contractual terms?

	(2)	were the Respondents in breach of such terms?

6.	They got no further.  Having identified the terms they found no breach by the Respondent, consequently no constructive dismissal; the Appellant simply resigned.  His claims failed.

7.	Against that decision the Appellant appealed to the Employment Appeal Tribunal by a Notice of Appeal dated 27 March 2000 and applied to the Employment Tribunal for a review of their decision.

8.	The review application was summarily dismissed by the Chairman under rule 11(5) of the Employment Tribunal Rules of Procedure by a decision which appears to be undated.  The Chairman was of the opinion that the Appellant was seeking to re-run the issues heard and determined at the original hearing.

9.	The appeal came on for Ex Parte Preliminary Hearing before a division of the Employment Appeal Tribunal presided over by Charles J on 18 October 2000.  That division took a highly unusual course.  They adjourned the Preliminary Hearing to come on, if necessary, before a different division, with the Respondent invited but not compelled to attend.  They also called for all the documents which had been before the Employment Tribunal in terms of documentary evidence and witness statements.

10.	At that hearing, we see from the judgment of Charles J, 2 possible points of law, although not exhaustive, were identified.  One was that the Employment Tribunal operated under a factual misunderstanding as to the difference between methods of delivering teaching to students called “taught classes” on the one hand and “open learning” (also known as flexi-study) on the other.  This fundamental misunderstanding by the Employment Tribunal, submitted Mr Fowler, permeated their decision.  The second point was whether the Employment Tribunal was wrong to hold, as a matter of law, that the generally implied term of mutual trust and confidence had been expressly excluded from this Appellant’s employment contract as a result of an entire contract clause (Clause 20.1 of the relevant written contract of employment, signed by the parties and executed in September 1995), and if so, whether that finding undermined the Employment Tribunal’s alternative finding that if the mutual trust and confidence term was included, nevertheless the Respondent was not in breach of that term.

11.	This is the adjourned preliminary Hearing.  We have been supplied with the bundle of documents which were before the Employment Tribunal; the Respondents have attended, represented by Mr Sheppard who appeared below; Mr Fowler has again advanced his case.  The question for us is whether the Appellant has raised any arguable point or points of law fit to go forward to a full appeal hearing.  If so, then the points must be argued again.  That is why Preliminary Hearings are generally heard without the Respondent being called on to argue the merits of the appeal.

12.	We should make it clear that we are not and do not regard ourselves as being in any way bound by what Charles J called “a preliminary view at a preliminary hearing”.  What we do regard ourselves as bound by is the statutory jurisdiction of the Employment Appeal Tribunal.  Our function is to identify arguable errors of law; not to retry the facts.

13.	In opening the appeal before us Mr Fowler produced a detailed written submission running to some 13 typed pages.  We took time to read that document.  We identified with Mr Fowler’s assistance, 4 principal grounds of appeal.

(1)	He submits that at paragraph 3 of their reasons the Employment Tribunal misunderstood the distinction between the 2 modes of delivery of the Diploma course referred to earlier.  We do not accept that submission.  Upon examination it is clear to us that the Employment Tribunal accepted the evidence of Karen Evans, Head of Department, to the effect that whereas in the past taught classes were offered to all students, for the year 1998-9 the flexi-study option only was being offered in the first instance, with the possibility that if there was sufficient take up, taught classes may be run.

However, the real question here is whether the Employment Tribunal was entitled to reject the Appellant’s case that he was contractually entitled to have classes in the Diploma course offered to students.  Looking particularly at clauses 2.1 and 4.1 of his written contract, there was express provision for flexibility in the courses which he could be required to take and the mode of their delivery.

In these circumstances we are satisfied that the Employment Tribunal was entitled to reject this part of his case.

(2)	Was he contractually entitled to be consulted on the new form of delivery of the Diploma course?  The Employment Tribunal found that he was not.  Again, we see no grounds in law for interfering with that finding.  Whilst consultation with employees is nearly always desirable as a matter of Industrial Relations practice, it was not a contractual obligation upon the Respondent in this case.

(3)	The implied term of mutual trust and confidence.  Mr Sheppard does not seek to support the Employment Tribunal’s finding that such a term was excluded by clause 20.1 of the written contract.  However, he submits that the Employment Tribunal were entitled to make their alternative finding (reasons paragraph 34) that that term added nothing to the other implied terms advanced by the Appellant and rejected by the Employment Tribunal, namely, that the taught Diploma course was his principal teaching duty and secondly as to consultation.

Mr Fowler submits that in so finding the Employment Tribunal disregarded the 10 point document (Bundle A 148-9) which he prepared at the Chairman’s direction, setting out the facts alleged in support of his case that the trust and confidence term had been breached.

We have considered those 10 points.  It seems to us that they were largely covered by the complaint of lack of consultation.  Evidence was given on other matters, including his wife’s termination of employment with the College in October 1996.  The fact that each allegation was not dealt with seriatim in the Employment Tribunal’s reasons does not mean that they were not considered.  Looked at as a whole we are satisfied that the Employment Tribunal was entitled to conclude that the trust and confidence term added nothing to the other contentions raised by the Appellant.

(4)	Discrimination

The Appellant refers to a successful claim of disability discrimination apparently brought by a Ms Rathbone against the College.

He does not himself advance any claim of statutory race, sex or disability discrimination.

His argument is that as a part-timer he was treated less favourably than comparable full-time staff.

He accepts that this claim does not give rise to a statutory tort.  However, he submits that by reference to both the staff handbook (which he claims is incorporated into his contract of employment; the Employment Tribunal found otherwise) and the student handbook, which he accepts was not so incorporated, the College could not discriminate against him.

14.	We reject that argument.  It is clear that the staff handbook (Bundle A50) is dealing only with direct and indirect race, sex and disability discrimination.  The words of the Student Handbook cannot extend the staff handbook definition of discrimination.

15.	Before us he sought to include this complaint under the umbrella of the implied term of mutual trust and confidence.  However, he did not put the case in that way below, as A148-9 demonstrates.  There are no exceptional circumstances allowing us to permit this new point to be taken for the first time on appeal.  See Jones v Governing Body of Burdett Coutts School (1998) IRLR 521.

16.	Finally, perversity.  We have looked at this case in the round.  Based on the Employment Tribunal’s findings of fact, which cannot be challenged on appeal, there being evidence to support them, it seems to us that far from being a perverse decision, the Employment Tribunal’s conclusion that there was here no dismissal was entirely permissible.

17.	In these circumstances we shall dismiss this appeal, no arguable point of law having been raised.