Yuan v Birkbeck College

J U D G M E N T

1. LORD JUSTICE KEENE: Dr Yuan seeks permission to appeal from two decisions of the Employment Appeal Tribunal ("EAT"), one dated 16 March 2005 and the other 8 April 2005. Both decisions concern a decision of an Employment Tribunal sitting at London Central and entered on the register on 10 October 2003.

2. Dr Yuan was employed by the respondent as a post-doctoral research assistant from 7 November 2002. The terms of Dr Yuan's employment by Birkbeck College were set out in a letter dated 29 August 2002 and accompanying handbook. The letter stated that the offer of employment was subject to satisfactory completion of a six-month probationary period. The relevant termination provisions which relate to the probationary period are that during the first six months, up to 6 February 2003, he should only be dismissed on the grounds of gross misconduct; at the three-month stage of the period - that is to say on 6 February 2003 - there should be a mid-point report. If that report indicated that progress had not been satisfactory, indications of how to improve and time scales for improvement should be given to the employee in writing. The crucial clause is 20.7.3 which reads:

"If, during this period, probationers fail to make a discernible improvement in performance within the given time scale, or if they are judged to be irredeemably incapable, they may be dismissed at this stage. A month's notice of the termination of contract will be given."

3. There was some evidence before the Employment Tribunal about concerns over the applicant's work. Then on 7 February 2003 a letter was sent to him by the respondent terminating his employment "with immediate effect with pay in lieu of the four weeks notice". On 24 April Dr Yuan applied to an Employment Tribunal alleging simply "breach of contract". The respondent's notice of appearance asserted that the applicant had shown himself incapable of carrying out his duties.

4. The Employment Tribunal in its decision defined the issues before it as raised by the applicant as being six in number. Those were -

"2.1 Whether the respondent is in breach of the applicant's contract of employment by failing to pay him one month's salary in lieu of notice.

2.2 Whether the respondent is in breach of contract in failing to pay the applicant salary for the balance of three months of his probationary period.

2.3 Whether the applicant is entitled to be paid damages for loss of a five-year contract.

2.4 Whether the applicant is entitled to be paid damages for loss of his work permit.

2.5 Whether the applicant is entitled to the damages for the loss of the opportunity to publish research and damage to his job prospects.

2.6 Whether the applicant is entitled to be paid damages for breach of mutual trust."

5. The tribunal found against the applicant on issue 1 on the facts. It rejected the next two claims by him on the basis that his contract had been terminated after the mid-point period of the probationary period. This followed a reference to clause 20.7.3, but the tribunal did not find that the employer was justified in regarding him as irredeemably incapable, if that had been the basis for dismissal. It did find that it had no jurisdiction as to the claim for loss of work permit and that the claim for loss of opportunity to publish research was too remote. Finally it noted at paragraph 19 of its decision:

"Dr Yuan's final claim is a loss due to breach of mutual trust in relation to an allegation that a colleague went to his flat and caused damage. This is not a matter over which the tribunal has jurisdiction."

6. Dr Yuan appealed to the EAT. His notice of appeal eventually challenged the finding that Birkbeck was entitled to terminate under clause 20.7.3. It also contained two other grounds, those being, first, breach of contract on the basis of breach of mutual trust and/or breach of the notice requirements under the contract and, second, damages for breach of contract for loss suffered in the remaining three months of the probation period, loss of job opportunities and opportunity to publish.

7. It seems that the EAT's registrar must have ruled that the notice did not appear to give the EAT jurisdiction. Certainly the next stage in the proceedings was a hearing before the president, Mr Justice Burton, on 19 May 2004 - under rule 3.10 of the EAT rules - for him to consider the position. A full transcript of Mr Justice Burton's judgment on that occasion has not been included in the court bundle but a full transcript was apparently before the Employment Appeal Tribunal at subsequent hearings. It appears that Mr Justice Burton found that the grounds of appeal had no reasonable prospect of success except one, namely whether the respondent was entitled to terminate under clause 20.7.3 on one month's notice for irredeemable incapability. I glean this, in the absence of the full transcript, from the EAT's judgment of 24 November 2004, at paragraph 2.

8. Mr Justice Burton was critical in his judgment on 19 May 2004 of the lack of reasons in the Employment Tribunal's decision on the issue raised by clause 20.7.3. Therefore he referred the matter back to the Employment Tribunal to provide its reasons. In the meantime he stayed the appeal for six weeks. The Employment Tribunal provided further reasons on 15 July 2004 on this issue. However Mr Justice Burton was not impressed by those reasons. By order dated 27 July 2004 he allowed the appeal to go forward to a preliminary hearing. Although the order does not spell it out clearly, it is clear to anyone reading the judgment that this was limited to the one issue which he had identified on 16 May 2004 as having any prospect of success. After a preliminary hearing on 24 November 2004 the EAT allowed the appeal to go forward to a full inter partes appeal. Its judgment makes it quite clear in the final paragraph that this was on "the one remaining ground of appeal."

9. On 16 March 2005 there was another preliminary hearing before the EAT at which it ruled that the other grounds of appeal had already been determined by Mr Justice Burton on 19 May 2004 and had not been live at the earlier preliminary hearing on 24 November 2004. It refused to allow the notice of appeal to be amended to raise those other points or to allow perversity to be raised by way of amendment. That last aspect has been in effect overtaken by events because, after the full hearing, the EAT on 8 April 2004 allowed Dr Yuan's appeal and remitted the case to a differently constituted Employment Tribunal for a re-hearing on the one issue of whether the respondent was entitled to determine the contract on one month's notice as opposed to three month's notice.

10. Dr Yuan seeks permission to appeal against those two decisions just referred to of 16 March 2005 and 8 April 2005. He cannot do so in respect of the latter decision because he won that appeal. His real complaint is that he wanted the EAT to consider and deal with the other issues he had originally raised in his notice of appeal. He argues that the EAT was wrong to interpret Mr Justice Burton's decision as dismissing those other grounds of appeal. Dr Yuan, who has appeared in person this morning, says that the second order of Mr Justice Burton does not explicitly allow or dismiss any grounds of appeal set out in the notice of appeal. Mr Justice Burton merely ordered that the appeal be set down for preliminary hearing in accordance with the EAT practice direction which is to the effect that the purpose of a preliminary hearing is to determine whether the grounds raise a point of law which give a reasonable prospect of success at a full hearing. Regrettably Dr Yuan has not provided the full transcript of Mr Justice Burton's judgment but I have already referred to what appears from the EAT's later decision. If that is right, clearly he should have sought to appeal against Mr Justice Burton's decision in May 2004. He is now well out of time in seeking to raise any argument about the merits or otherwise of Mr Justice Burton's decision.

11. In so far as there is any point based upon the eventual order drawn up after Mr Justice Burton's decision, it is clear to me that the applicant was well aware as to what that order meant, given that he had the full judgment available to him, the full judgment making it clear that the appeal was going to be restricted to the one ground already identified. Moreover and in any event, in so far as those other claims went beyond the extent of his losses flowing from the alleged breach of contract which had been referred back to the Employment Tribunal, they patently had no prospect of success.

12. In all those circumstances I can see no real prospect of a successful appeal against either decision which Dr Yuan now challenges. It therefore has to follow that these applications must be dismissed.

Order: Applications dismissed