Appeal No.	 EAT/947/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 January 2002

Before
MR COMMISSIONER HOWELL QC
MR J R CROSBY
MR S M SPRINGER MBE

MR M S HAFEJEE	APPELLANT

LEYTON SIXTH FORM COLLEGE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	The Appellant in person

MR COMMISSIONER HOWELL QC

1	In this appeal Mr Mahmed Salim Hafejee seeks to have set aside as erroneous in law the Decision of the Employment Tribunal sitting at Stratford on 22 February 2001 embodied in Extended Reasons now before us issued to the parties on 21 June 2001 at pages 4 - 11 inclusive of the appeal file.  

2	The proceedings before the Tribunal which gave rise to that Decision were by Mr Hafejee against his former employers, the Leyton Sixth Form College.  There is no dispute that he had been employed by them as a member of the teaching staff for at least the term time periods of the academic year 1999 - 2000, and his main claim was for breach of contract.    

3	The single issue which gives rise to this appeal was the Tribunal’s Decision on the terms of his appointment as regards payment for the period of the summer holiday 2000, that is the period from 15 July 2000, which was the day after the summer term ended, to 31 August 2000.  Mr Hafejee’s contention was that by virtue of the contractual arrangements between himself and the college he ought to have been paid for that holiday period.  The college resisted that and contended that they were correct in having paid him only up until the end of the summer term on 14 July and were entitled, because of the temporary nature of his appointment, to pay him only up to that date and not also to pay him for the period of the summer holidays which would have been his entitlement had he been a member of the permanent staff under the terms of the national conditions for such staff.  

4	All this, as Mr Hafejee who presented his own case before us with considerable skill agreed, depended on what was or what was not agreed between himself and the college in about January or February 2000 when there were negotiations between them about his terms of appointment.  These followed what the college had contended, and the Tribunal found as a fact, was the ending of his initial period of fixed term appointment on 31 December 1999.  

5	The facts as found by the Tribunal relating to these negotiations are contained in paragraphs 15 - 20 of the Tribunal’s Extended Reasons and are as follows:
“15     On 15 December 1999 Mr Lowe  [he was the college’s Director of Human Resources] sent to the Applicant a letter offering an extension of contract employment from 31 December 1999 to 14 July 2000.”
That letter was in evidence before the Tribunal.
“16     The Applicant’s response was to vary the offer letter by substituting 31 August 2000 for 14 July 2000 and returning the letter to Martyn Lowe with the following manuscript endorsement:
“in line with NUT agreement I accept the variation to my current contract of employment on the understanding that the summer term ends on 31 August 2000”.
17     It is unclear when that document was returned but Mr Lowe spoke to the Applicant on 6 January 2000 and told him that his proposed manuscript was not accepted.”
That letter which was in evidence before the Tribunal.
“bears a manuscript endorsement by Mr Lowe in the following terms:
“(not agreed) - verbally notified 6-1-00” (Mr Lowe’s signature)
18     On 17 January 2000 Mr Lowe wrote to the Applicant setting out the Respondent’s position. ……..The letter sets out Mr Lowe’s analysis of the legal position as he saw it, records the dispute and that the College’s intention was the current contract would end on 14 July 2000 in accordance with the express wording of the letter of 15 December 1999.
19     Notwithstanding the discussion between Mr Lowe and the Applicant on 6 January, the Applicant undertook his teaching responsibilities from the beginning of term”
(we interpose that 6 January is likely to have been the first day of the spring term 2000.)     
“and continued teaching beyond receipt of that letter of 17 January 2000.”
“20     On 17 February 2000 the Applicant countered with his memo to Mr Lowe which is at page 9 of A1 disputing Mr Lowe’s legal analysis and seeking to assert that the summer term would expire on 31 August 2000 under the National Agreement in relation to his personal conditions of service.  That memo concludes:
“my continued employment is on the understanding that the College will honour its undertaking on the end date of the summer term being 31 August 2000.”
We would observe in passing”
This is the Tribunal saying this
“that no such undertaking by the Respondent to the Applicant had been evidenced by the material placed before us.  Indeed, all the evidence is to the contrary.”

6	There is no record of the College having specifically countered the assertions in the memo of 17 February 2000 at that time, but as the Tribunal recorded in paragraphs 21 and 22 of their Extended Reasons:
“21  On 3 May 2000 the Applicant sent a further memo to Mr Lowe …….He complains that he has not received a contract of employment and states:
“…..nor have I received any clarification as to my entitlement to pay over the summer holidays given that the summer term ends on 31 August 2000”
The final paragraph of that memo duplicates verbatim the final paragraph of the memo of 17 February 2000.
22  Mr Lowe acknowledged receipt by his memo of 9 May ….[he] maintained the Respondent’s position consistently with his earlier stance …….”

7	The Tribunal’s legal analysis, disputed by Mr Hafejee, is stated in paragraphs 30(4) - (7) of their Extended Reasons as follows:
“(4) The Respondent’s memo of 15 December 1999 constituted an offer to extend the fixed term contract by substituting for 31 December 1999 the later expiry date of 14 July 2000.  The Applicant’s attempt to accept the offer with a unilateral extension of the expiry date from 14 July 2000 to 31 August 2000, amounted in law to a counter-offer which the Respondent was free to accept or reject, a counter-offer which had no legal effect other than to operate as an implied rejection of the offer and to operate as a termination of the offer.
(5) The Respondent rejected the counter-offer, a rejection communicated orally to the Applicant on 6 January 2000, and the original offer of an extension to 14 July 2000 was reinstated.
(6)  The Applicant faced a stark choice at that point in time between accepting the offer in its original terms namely an extension to 14 July 2000, or rejecting the opportunity to continue with the Respondent throughout the spring and summer academic terms up to 14 July 2000.  The Applicant’s action in continuing in his teaching post after 6 January 2000 on the facts amounted in law to unconditional acceptance by conduct of the Respondent’s offer on the Respondent’s terms.  His conditions of service remained those conventionally applicable to teaching staff on fixed term contracts, no express variations from that norm having been agreed between the parties.  The Applicant’s employment would therefore terminate on the express expiry date, without the extension to 31 August 2000 applicable to permanent members of the teaching staff under the National Contract.  
(7)  The subsequent initiatives by the Applicant, disputing the expiry date, occurred after the variation to the original contract had crystallised and had no contractual consequences.  Legal arguments applicable to “battle of forms” and “last shot” principles relating to events after the Applicant committed himself to continue working for the Respondent are irrelevant.”
On that basis the Tribunal concluded that the only subsisting contract of employment between the Applicant and the college had been one which came to an end on 14 July 2000 and that was the date on which his employment with the Respondent terminated, with the result that he was not contractually entitled to the additional payment he sought for the period of the summer holiday.
8	Against that Decision Mr Hafejee appeals on grounds set out in his Notice of Appeal dated 30 July 2001 and amplified in his Skeleton Argument and oral argument before us.  The two principal grounds he has sought to persuade us are arguable for saying that the Tribunal’s Decision was erroneous in law are first, that there was an error on the part of the Tribunal in their legal analysis of what happened in January 2000 and subsequently, in particular because paragraph 30(6) of their legal analysis which we have quoted referred only to his:
 “action in continuing in his teaching post after 6 January 2000” 
as being an unconditional acceptance by conduct of the Respondents’ offer.  In fact, as recorded by the Tribunal themselves in paragraphs 18 - 20, there had been a clear indication by Mr Hafejee himself that he was not content with the Respondents’ interpretation of the position and he was continuing to contend that they were contractually bound to pay him up until the end of August 2000, and had made it express in his memo of 17 February 2000 that he was continuing to work on that basis.  

9	In those circumstances Mr Hafejee says that the Tribunal erred in saying that by continuing to work on beyond 6 January 2000 he had unconditionally accepted the Respondent’s terms, and had failed to take sufficient account of the fact that he had made a clear response to the contrary.  In those circumstances he said that the Tribunal’s analysis in subparagraphs (6) and (7) was inadequate and they ought at any rate to have addressed the possibility that the college should be taken to have acquiesced to what Mr Hafejee had expressly said in his memorandum of 17 February 2000 asserting that he was entitled to payment throughout the period of the summer holidays.  

10	Secondly, he draws our attention to some well established authority in the context of unilateral attempts by employers to impose variations on existing terms of employment, where it is held that great caution should be exercised in implying a consent on the part of the employee to an alteration for the worse in his or her contractual position, by the mere fact of continuing to work and accept remuneration from the employer.  Mr Hafejee very fairly accepted that those cases are predicated on the existence of clear subsisting contractual rights which the employer is unilaterally seeking to remove, and that his case is not so strong because here the doubt was as to what the terms of the existing contract were.  Nevertheless he says that by analogy the same principles should be applied in determining what those terms should be held to be, by reference to the express terms of the national contract applicable to permanent teaching staff, which make clear that they are entitled to payment for the summer term down to and including the end of the summer holidays that follow.  

11	As regards the second of those arguments we have not been persuaded that an arguable error on the part of the Tribunal is disclosed since here, as Mr Hafejee we think rightly accepted, the whole question was what had or had not been agreed between himself and the college about the termination date for his employment.  That was a simple matter of determining what was offered and accepted between the two of them without any other pre-existing contractual obligations being in place, so that we think the Tribunal were right to approach the question simply as a matter of legal analysis in attempting to determine what the contract agreed between the two of them after the end of 1999 was.  

12	As to the way the Tribunal went about it, and the analysis that Mr Hafejee particularly criticises in paragraphs 20 and 30 (6) and (7) of the Tribunal’s Extended Reasons we accept that the reasoning of the Tribunal there is not perhaps as clearly expressed as it might have been.  In particular, it might have been better if the Tribunal in their analysis had more clearly focused on the effectiveness of the renewed offer made by Mr Lowe, on behalf of the college, only on 17 January (not 6 January, which was the only date referred to in January in paragraph 30(6) of their Extended Reasons) and also had specifically referred to the consequences or otherwise of the college’s apparent failure to respond expressly to the contentions put forward by the Applicant in his memorandum of 17 February, at that time, or until Mr Lowe’s later memorandum of 9 May.   

13	Nevertheless, we have not been persuaded that that gives rise to a sufficiently arguable material defect in the Tribunal’s reasoning and their Decision on this case to warrant our directing that this case should go forward to a full inter partes hearing of the Employment Appeal Tribunal.  The Tribunal’s clear finding was that the Applicant had continued to work on throughout the continued period of employment down to 14 July 2000 on the basis of the only subsisting offer of continued employment that had been made to him; and it appears to us not open to dispute that the only basis on which the college had ever agreed to make such an offer was that his employment would come to an end on 14 July 2000, the end of the summer term.  

14	For a contractual entitlement to more, and in particular for a contractual entitlement to payment for the summer holidays after that date to have been established, it would have been essential for Mr Hafejee to have been able to show, on the balance of probabilities, that there had been a contract for his continued  retention as an employee down to the date he was contending for, 31 August 2000, and on that the burden of establishing the facts was on him.  

15	We have not been able to see that there is any arguable ground for saying that the Tribunal’s clear conclusion that it had not been so established to their satisfaction was erroneous in point of law.  Their reference to the fact that no evidence of any undertaking having been given to Mr Hafejee as to his employment continuing until 31 August 2000, in paragraph 20 of the Extended Reasons, appears to be not open to dispute.  On that basis, there being no other evidence before them, apart from the mere fact of the college failing to respond immediately to the memorandum of 17 February, we have been unable, despite the well presented arguments of Mr Hafejee, to see how it could have been concluded, on the facts as found by the Tribunal, that a further and continued contractual entitlement had arisen for the period beyond the end of the summer term when the college ceased to pay him.

16	For those reasons we have not been satisfied that there is an arguable ground here for directing a full hearing of this appeal before the Employment Appeal Tribunal and we accordingly now unanimously dismiss this appeal.