Judge v Crown Leisure Ltd

An employment tribunal should generally give parties an opportunity to address an unanticipated finding of fact that may affect the outcome. That is not an invariable requirement where the legal consequence of the finding is obvious and unarguable. An omission will justify appellate intervention only where the tribunal’s application of the law was wrong. A contractual promise must be sufficiently certain, or supported by facts from which certainty can be established. A promise to achieve salary parity eventually or in due course is too vague to be enforceable, whereas a promise tied to a period such as two years might be sufficiently certain. In an existing employment relationship, the issue is ordinarily whether the words amounted to a contractual promise, rather than whether the parties intended legal relations.

Mr Thomas Judge appealed from the Employment Appeal Tribunal’s dismissal of his appeal against an employment tribunal decision. The employment tribunal had dismissed his constructive-dismissal claim against Crown Leisure Limited.

Mr Judge alleged that his employer had contractually promised to bring his remuneration into parity with that of another Special Operations Manager within two years. The tribunal rejected both the alleged express promise and the employer’s complete denial of any relevant conversation. It found instead that there had been a casual assurance of eventual or approximate parity, but no legally binding commitment.

The appeal concerned whether the tribunal had made findings of fact that neither party had anticipated without allowing further submissions, and whether it had applied the wrong test concerning intention to create legal relations.

1. Appeal dismissed. The Court of Appeal’s principal concern, on this second-tier appeal, was whether the employment tribunal’s decision was correct, rather than whether the Employment Appeal Tribunal had adequately explained its reasoning.
2. Lady Justice Smith held that fairness generally requires a tribunal to give the parties an opportunity to address a finding of fact which it has not anticipated they would contend for and which may affect the result. If the possibility arises during the hearing, it should usually be raised in closing submissions. If it emerges only afterwards, further written submissions will usually be appropriate. Paragraph 11 of the Employment Tribunal Regulations gave the tribunal a sufficiently wide procedural discretion, however, and further submissions were not invariably necessary where the legal effect of the facts was obvious and unarguable.
3. Any procedural omission did not itself require the decision to be set aside. The appellate court would intervene only if the tribunal’s application of the law was wrong. Here the facts found could lead only to the conclusion reached, so there was no material procedural unfairness.
4. The tribunal had applied the correct contract-law principle: a legally binding contractual commitment requires certainty as to the commitment, or facts from which certainty can be established. The words found to have been used were too vague and uncertain. They reiterated an intention to achieve parity in due course and did not amount to a contractual promise. A promise to achieve parity within two years might have been sufficiently certain, but a promise to do so eventually or in due course was not.
5. The issue of intention to create legal relations did not arise. The parties were already employer and employee. If words were capable of amounting to a contractual promise, it could not sensibly be suggested that they lacked an intention to create legal relations. The authorities relied on by the appellant, including Edwards v Skyways Ltd [1964] 1 All ER 494, therefore did not affect the outcome.

Sir Martin Nourse and Lord Justice Mummery agreed. The appeal was dismissed, with no order for costs.

• Court of Appeal (Civil Division) — appeal dismissed in [2005] EWCA Civ 571.
• Employment Appeal Tribunal — dismissed Mr Judge’s appeal from the employment tribunal.
• Employment Tribunal — dismissed the claim that Mr Judge had been constructively dismissed.