Appeal No.	 EAT/387/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 November 1997

Before
HIS HONOUR JUDGE B HARGROVE QC
MR E HAMMOND OBE
MISS A MACKIE OBE

MR J M YOUNG	APPELLANT

CRITCHLEYS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	APPELLANT IN PERSON
Messrs Beviss & Beckingsale
Solicitors
Law Chambers
Holyrood Street
Chard
Somerset TA20 2AJ	
For the Respondent	MR A KORN
(of Counsel)
Messrs Linnells
Solicitors
Greyfriars Court
Paradise Square
Oxford OX1 1BB	

	JUDGE B HARGROVE QC:  The Respondent is a firm of accountants operating in the Oxford area.  In early 1994 they advertised for an employee and the terms used in one advertisement seemed to have been for a practice manager and in another for a partnership secretary.  The existing manager was retiring.  The firm was also considering whether the person so appointed might take on the wider duties of practice manager and partnership secretary but no final decision had been made by the firm at the time of the Appellant’s appointment on 3 May 1994 to the post described as “partnership secretary/office manager”.

	The Appellant resigned on 24 May 1996 having, it seems, delayed his resignation in order to have the necessary qualifying time to make a claim to the Industrial Tribunal.  

	As I have indicated, the letter of appointment mentioned the position of practice secretary/Oxford office manager.  As to the hours of work, at the date of appointment, the only agreement which seems to have been reached, was the Appellant would be present when the post was opened.  The position in relation to working hours, the Industrial Tribunal found to be in the following terms in paragraph 4(h):

“Over the course of the next two years, there were a series of discussions about Mr Young’s terms of employment and with regard to his role in the practice.
(i)	As regard to terms of employment, there were issues about hours, holidays, sick leave, notice and pension contributions.  At no stage were any of these points resolved by a clear agreement, but Mr Young accepted that the one issue which mattered was the question of working hours.  Mr Young had been told what the standard working hours were at the time of his interview.  It was also accepted by both parties that Mr Young was expected to work additional hours beyond the standard hours as and when required, without any payment.  During the course of evidence, a number of versions were put to the Tribunal in respect of working hours, from starting times commencing at 7.45 and 8.15 am to finishing times at 4.00, 4.30 and 5.00 pm.  We find that in fact no agreement was reached.  In practice what happened was that Mr Young turned up in time to open and sort the post, and then worked such hours as were necessary, sometimes beyond 6.00 pm.  Mr Young would then take time off in lieu, as he saw fit;  but by the time of his memorandum of 16 May 1996, Mr Young records that he has worked 882.4 hours overtime.”

	One turns to 4(n) of the extended reasons and it reads as follows:

“On 11 March 1996, Mr Stew decided to bring the discussions about Mr Young’s terms and conditions of service and his job description to a head by issuing a draft employment contract.  There were many points in this document with which Mr Young took issue, and there were continuing discussions.  However, we find that that document’s statement that Mr Young’s hours were 8.15 am - 1.00 pm and 2.00 pm - 5.00 pm did at least reflect the hours that Mr Young was actually working at that time.”

	The response to that was that the Appellant refused to agree.  On 24 May there was a further development and this is set forth at 4(p) in the following terms:

“When Mr Stew made clear that he was not prepared to enter into any further discussions, Mr Young wrote his letter of resignation of 24 May 1996, to take effect on 28 June 1996.  In that letter he says:-
‘I consider that the termination of my employment is a matter of constructive dismissal due to your failure to provide me with a written statement of particulars at the time of my appointment and your intention to impose unacceptable changed terms some two years later.  In addition, there have been a number of breaches of contract during the period of my employment which have ultimately led to the breakdown of the necessary trust between employer and Manager.  By your behaviour, you have made it impossible for me to continue in your employ.  It is my intention, therefore, to submit a claim to the Industrial Tribunals’.”

	The Appellant says that there was a failure to agree his terms and conditions of employment and that that in itself amounted to constructive dismissal.  The approach of the Appellant seems to be that a failure to provide the matters required by s.1 of 1996 Act that the Tribunal should declare the terms of the contract of employment to be the hours for which he contended, that there had been a breach of such terms and that led to his resignation and, therefore, to his constructive dismissal.

	By extended reasons provided to the parties on 30 January 1997, the Industrial Tribunal rejected both claims, that is, in respect of both the remedy of a declaration under s.11 and in relation to constructive dismissal and the Appellant appeals from those findings.
	The question of a breach of s.1 of the Act, the findings of the Tribunal can be found in paragraphs 9, 10 and 11 of the extended reasons and they are in these terms:

“Mr Young complains that the statement about working hours in the March 1996 draft does not reflect what was agreed at the time of his appointment.  But as indicated above, the Tribunal finds, first, that there was no agreement about hours, and, second, that the hours referred to in the March 1996 draft did at least reflect the practice at that time.  Accordingly, we find that whilst the respondents may have been in breach of Section 1 at the outset, there was in fact no agreement as to hours in respect of which a Tribunal could make any declaration.  The March 1996 draft, in any event, reflects the hours that were being worked at that time.
10.	Mr Young also complains that the failure to agree his job description was itself a breach of Section 1(4)(f), but the March 1996 draft does refer to the job title of ‘Partnership Secretary and Oxford Office Administrator’, reflecting the reference to ‘Partnership Secretary/Oxford Office Manager’ in the appointment letter of 25 March 1994.  We find that the requirements of Section 1(4)(f) are limited.  All that is required is ‘the title of the job’ or, in the alternative, ‘a brief description of the work’ for which the employee is employed.  We find that the job title in the draft fulfils this requirement - even if it falls far short of Mr Young’s expectations for a full job description in line with his own vision of the post.”

	The Appellant says that the first stage the Tribunal should have held that since no terms were agreed as to the hours of work the Tribunal should then have found that the Respondent was in breach of such terms as the Tribunal supplied.  Secondly, it is said that the Tribunal failed to have regard to the evidence.  That is a perversity point.  The Chairman’s notes are not before us and it is impossible to say that this is a decision which, on the face of it and with regard to the evidence, is plainly wrong.  One of the difficulties throughout the case has been the Appellant’s wish to retry the case before us upon the facts.  For example, much of the document entitled “Arguments for appeal hearing” seems to us to be based on that approach.  Thirdly, it is said that in any event the Tribunal should have employed such terms as were reasonable in all the circumstances giving all benefits of the doubt to the Appellant.

	The Respondent relies on Eagland v British Telecommunications plc [1993] ICR 644, the relevant passage is at page 652.  The position was that in Mears v Safecar Security Ltd [1982] Stephenson LJ had given some indications, obiter, of what he thought Tribunals could do faced with a situation where either the terms were not agreed or had been specifically ruled out.  Parker LJ says at page 652:

“With respect to the Lord Justice, I have no hesitation in saying that, so far as non-mandatory terms are concerned, the tribunal have no power to include any such terms.  What they would have power to do - but it is a wholly different matter - is to say that, because the contract turned out to be a contract of employment, it was a necessary legal incident of that contract that the ordinary requirements of such a relationship be included.  But the requirements of such a relationship do not include disciplinary rules, pension, sick pay or holiday pay and in my judgment they have no power to impose upon an employer any such terms if it be the fact, as it undoubtedly was, that either it had been agreed that there should be no pension, sick pay, holiday pay, or discipline rules, or the matter had not been agreed at all.  The wording of the section makes it perfectly plain, as indeed must be the case at common law, that there may be no such terms and there is nothing in any section of the Act which empowers or requires the tribunal to impose upon the parties terms which had not been agreed when the statute recognises that it may be the case that no such terms have been agreed.”

	The judgment then continues to consider the question of mandatory terms.  So far as mandatory terms are concerned it may be difficult to see how the matter can ever arise subject only to this.  There may be a case where there is, for example, no provisions to the length of notice.  In such a case a Tribunal would, in my view, have power to conclude that there must be reasonable notice.  It may also have power to decide, as would a Court of Law, the length of such notice which would be a question of fact.  But I do not consider that even in mandatory cases the Tribunal have power to impose on parties terms which have not been agreed.

	That passage seems to me to make it quite clear that the comment obiter by Stephenson LJ and upon which the Appellant relies are no longer good law.  I am reinforced in that view by the fact that the new s.2(1) of the 1996 Act makes it clear that there may be situations in which there are no terms agreed between the parties.  

	The finding is that the draft contract represented the hours being worked.  It is apparent, therefore, that makes clear that there was no continuing breach.  The Tribunal was not required to place any weight, in our view, upon the standard forms of contract which were utilised by the firm.  This is particular so in a case where the Appellant himself refers to his position as being unique.

	The problem facing the Appellant is that there is a misunderstanding of the very limited effects of s.11.  The remedy under s.11 is that there is a declaration but even that declaration does not automatically become incorporated in a contract although it may, in appropriate cases, be prima facie evidence of the terms, see Systems Floors (UK) Ltd v Daniel [1982] ICR 54.

	Turning now to the question of constructive dismissal.  The Industrial Tribunal was, in our view, entitled to take the view that the Appellant had tied his colours to the mast in claiming that the failure to agree hours of work and job description were matters to be relied on in claiming constructive dismissal.  Before us the Appellant has attempted to draw in a number of other complaints presumably to bring the matter within “the last straw” principle.  That, again, illustrates the Appellant’s failure to understand that this is not an area which is open to us on appeal.

	Once the Tribunal found that there was nothing which entitled it to make a declaration, then the position of the Appellant’s claim to constructive dismissal was in peril.  There had been no reaction by the Appellant within due time to what was alleged to be a fundamental breach.  At one time we did consider whether the Tribunal should have considered “the last straw” principle but we reached the conclusion that since the case had not been run before the Industrial Tribunal on that basis, the point could not now be taken before us, see Dimtsu v Westminster City Council [1991] IRLR 451.  The proposition also rules out a consideration of the matters urged in paragraph 5 of the written argument placed before us by the Appellant this morning.

	The Appellant also objects that the finding in the extended reasons that there had been affirmation of the position was not mentioned by the Industrial Tribunal in the summary reasons.  This misconceives the functions of summary and extended reasons.  We respectfully adopt the analysis by a differently constituted Court of the Employment Appeal Tribunal voiced by His Honour Judge Altmann in the unreported case of O’Hara v Tulip International (UK) Bacon Division Ltd at page 23, that summary reasons set out the conclusions and the extended reasons described the means by which the Tribunal has reached the conclusions.  In that respect there is nothing which can be the subject of criticism in the Tribunal resting its conclusions on one or more legitimate grounds in the extended reasons.

	Finally, the Appellant raises the point that the Industrial Tribunal failed to take account of the position of the Appellant and that he could rely upon a series of omissions by the Respondent as justifying his claim for constructive dismissal.  This is the last-straw basis in another form and we have already averted to that matter that there is no basis for complaint on that ground.  

	In summary, therefore, the Tribunal was entitled to reach the conclusion of fact which it did, in fact, reach and there is no error of law.  Consequently, this appeal fails and is dismissed.