I.C.R. 54, noted (1982) I.L.J. 118. Employment Appeal Tribunal.
Daniel was dismissed from his employment on 14.11.1980, and claimed unfair dismissal. At that time it was necessary for an employee to have been in continuous employment with the employer for 52 weeks to qualify for unfair dismissal, and the evidence as a whole suggested that his employment not begun until 1.12.1979, in other words, that he had not been employed long enough to qualify for unfair dismissal.
However, the statutory particulars erroneously suggested otherwise. They gave his commencement date as 19.11.1979, which would have given him the necessary 52 weeks. He signed the statement to acknowledge that he had received it.
All the evidence could be taken into account (even though Daniel had signed the statement). Thus, he could not rely on the date of commencement of employment in the statutory particulars, when his fact his employment had begun later. Gascol was distinguished, because there he had in reality signed what he acknowledged to be a written contract - here he merely received a unilateral document stating the employer's view.
It seems to us, therefore, that in general the status of the statutory statement is this. It provides very strong prima facie evidence of what were the terms of the contract between the parties, but does not constitute a written contract between the parties. Nor are the statements of the terms finally conclusive: at most, they place a heavy burden on the employer to show that the actual terms of the contract are different from those which he has set out in the statutory instrument.
Against that background we turn to consider the decision of the Court of Appeal in Gascol Conversions Ltd v Mercer which was the basis of the Industrial Tribunal's decision in this case. In that case there was an agreed variation in the terms on which the employees were engaged. When the Industrial Relations Act 1971 came into operation the employer became bound to give a written statement of particulars, and in pursuance of that obligation the employer sent a new contract of employment to each of their men. Each man was given a copy to keep, and he was required to sign a document in these terms: "I confirm receipt of a new contract of employment dated 25.2.72, which sets out as required under the Industrial Relations Act 1971 the terms and conditions of my employment.' Mr Mercer signed such document. The Court of Appeal held that in those circumstances the document constituted a binding written contract and that accordingly no evidence was admissible to show that the terms of the contract were otherwise. In our view that case does not cover the present case. In that case Mr Mercer had signed a document which he confirmed was a new contract of employment and that it set out the terms and conditions of his employment. The Court of Appeal treated that as being a contract in writing, as indeed it was, having been signed by both parties. But in the case of an ordinary statutory statement served pursuant to the statutory obligation, the document is a unilateral one merely stating the employer's view of what those terms are. In the absence of an acknowledgement by the parties that the statement is itself a contract and that the terms are correct (such as that contained in the Mercer case,) the statutory statement does not itself constitute a contract in writing.
In the present case, all that Mr Daniel did was to sign an acknowledgement that he had received the statement. In no sense did he sign it as a contract or acknowledge the accuracy of the terms in it. We therefore think that the Industrial Tribunal erred in law in treating the date of commencement mentioned in the statement as decisive because it was a contractual term. In our view the statement is no more than persuasive, though not conclusive, evidence of the date of commencement.
1. This was not really a contractual term at all, but a factual statement, probably inappropriate for inclusion in a contract.
2. Where the employer issues a statement of terms more favourable to the employee than the previously agreed terms, he may in appropriate circumstances be estopped from denying the terms. However, in this case it would not be easy to work an estoppel against the employer - how had the employee relied on the statement?
3. Note that unlike Gascol, the employee had signed only for receipt of the terms.
4. The case was followed in Robertson v. British Gas Corp, below (CA).
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