The Partners of Haxby Practice v Collen

Whether an employment contract is concluded orally depends on the parties’ objectively ascertained intention. An indication that the terms will be confirmed in writing and accepted may show that neither party is to be bound until that process is complete.

Where parties subsequently record an agreement in writing, the written agreement prevails over an inconsistent earlier oral agreement. A party cannot ordinarily rely on a written term which that party knew was included by mistake. Written reasons subsequently supplied by an Employment Tribunal are its definitive reasons and supersede oral reasons, although a change to the decision itself requires the appropriate review procedure.

The claimant accepted a practice-nurse position after a telephone call in which the employer’s intended salary was stated as £22,427. The employer then sent a written offer, which mistakenly specified £30,762. The claimant accepted it in writing and began work. The Employment Tribunal found that she did not know, and had no reason to suspect, that the higher salary was erroneous. It held that the written terms governed and awarded damages for wrongful dismissal and related sums.

The employers appealed, challenging the contractual rate, the divergence between the Tribunal’s oral and written reasons, and the fairness of the Employment Judge’s conduct. The central issue was whether a binding contract entitled the claimant to the salary in the written offer.

1. Appeal dismissed. The Tribunal’s conclusion that the claimant was contractually entitled to £30,762 was the only conclusion open on its factual findings, notwithstanding errors in aspects of its stated reasoning.

2. The Tribunal had wrongly reasoned that no oral contract could arise merely because the claimant had failed to take in the salary stated during the call. Offer and acceptance are assessed objectively. It had also been unpersuasive to treat the agreement as incomplete simply because several usual employment terms had not been discussed: courts and tribunals will ordinarily imply terms to fill such gaps.

3. Nevertheless, the evidence supported the conclusion that neither party intended to be bound during the telephone call. The employer said that the job terms would be confirmed in a letter, and the claimant did not demur. In context, the intended binding offer was the subsequent written offer, accepted in writing by the claimant.

4. Alternatively, even if an oral agreement had arisen, it was superseded by the later written agreement. Where parties have made an oral agreement and subsequently agree to record it in writing, the written agreement prevails if the two are inconsistent. The claimant could not have relied on the erroneous salary had she known it was a mistake. The Tribunal’s findings, however, established that she neither knew nor had reason to believe that it was erroneous.

5. Where written reasons are supplied under the Employment Tribunal Rules of Procedure, they are the sole authoritative statement of the Tribunal’s reasons and supersede oral reasons. A substantive divergence in reasoning is not, without more, an error of law or a change requiring review. A change to the decision itself is different and must be made through review or, exceptionally, recall.

6. The Judge’s interventions in managing an unrepresented claimant’s questioning, and his ill-advised response to the request for written reasons, did not establish actual or apparent bias. The evidence did not show that an objective observer would consider the Judge partial, or that the employers had been denied a fair hearing.

• Employment Appeal Tribunal: Appeal dismissed at a preliminary hearing. The Employment Tribunal’s decision was upheld.
• Employment Tribunal (Leeds): The claimant succeeded in claims including wrongful dismissal. The Tribunal held that the written offer fixed the contractual salary at £30,762 and awarded damages, deductions and a sum under section 38 of the Employment Act 2002.