At the Tribunal
HIS HONOUR JUDGE D M LEVY QC
MR P DAWSON
MR T C THOMAS CBE
JUDGMENT
Revised
APPEARANCES
For the Appellants MR VERNON FLYNN
(Of Counsel)
Mr J W Daw
Employee Relations Manager
Harrods Ltd
Knightsbridge
London
SW1X 7XL
For the Respondent IN PERSON
JUDGE LEVY QC: This is an appeal by Harrods Ltd ("the Company") against a decision of the West Croydon Industrial Tribunal, following a hearing on 22 October 1993, that Mr Fowler, the Applicant below, the Respondent here, was unfairly dismissed by the Company.
The facts can be very shortly stated. Mr Fowler entered into a Youth Training Contract with the Company, a copy of which is in the improperly paginated and ill prepared bundle which the Company has produced for this hearing. He was called a "trainee engineer" and was originally on a basic remuneration of £2,781 from 7 September 1987. Paragraph 12 of that document states "that any changes in the terms of employment occurring after the date of this document will be notified to Mr Fowler in written form within one month of the change".
Mr Fowler, though described as a trainee engineer, was in fact being trained as an electrician and he had the misfortune on several occasions to fail exams which he had taken. On 11 February 1992 he celebrated his twenty-first birthday. Shortly after, his position in the Company was reviewed. He was interviewed and a letter was written to him and a document signed by him. The letter, dated 16 March 1992, reads as follows:
"Further to our discussion on Saturday 14 March, 1992, this letter is confirmation of the following points I made to you:
1. I have now received a letter from South East Essex College of Arts and Technology that states you have failed element 8-23, the second written paper, for the second time. The college confirms that because of this failure you cannot be recognised as an Electrician.
2. As you have now completed your Youth In Training Scheme you will be appointed to the position of Craft Assistant.
3. You will be expected to re-sit the examination in June and pass. (underlining added)
In the event of failure of this examination, Harrods will terminate your employment. As you are aware we do not employ unqualified Electricians".
The document, dated 1 April 1992 and headed "Contract of Employment Amendment", was signed both by Mr Fowler and on behalf of the Company. Manuscript on it reads: "End of Training Scheme, Three Month Trial Period". Unhappily, he failed his examinations again and after proper disciplinary procedures, the Company terminated his employment. Mr Fowler complained that it was never a term of his contract that he had to take examinations. He commenced proceedings in the Industrial Tribunal on 7 October 1992.
The Notice of Appearance of the Company was put in on 26 October 1992. There followed the hearing almost a year later. It seems to be common ground here that the decision following the hearing turned on the documents which were before the Tribunal. The operative part of the Tribunal's decision is found in paragraph 4 of the Reasons. That paragraph reads in part:
"This matter, although it would appear a simple one on the facts which we have recited in fact caused us a great deal of difficulty. It would appear superficially that as the Applicant had failed to pass the examinations which he was required to pass then the Respondents were entitled to dismiss him for that reason. However, reference, in our view, has to be made to the original contract of employment. .... ".
Then, it sets out some terms of it and then continues:
"Nowhere in that contract does it stipulate that as a condition of further employment at the end of the period of training, which again is not specified in the document, that the Applicant will be required to pass certain examinations. We find also that there was some expectation at the time when this contract was entered into that persons who failed the examinations could in fact expect employment at a lower grade. This expectation was we find not continued because of the appearance of the new electricity at work regulations which laid down much higher standards but we also find that this was not communicated to the employees and that persons in the position of the Applicant could expect on the basis of what had happened in the past that in the event of their failing their examinations some work at a lower grade would be found for them if the Respondents had vacancies. Having regard to what we find to be the terms and conditions of the contract of employment which it is to be noted it is not a contract of apprenticeship requiring the achieving of certain standards and which is not expressed to be for a fixed term but is a general contract of employment we find that the Respondents do not establish to us the reason which they put forward for the dismissal of the Applicant. We cannot find in this contract of employment any stipulation that qualifications were required as a condition of future employment and without such a stipulation the Respondents were in our view not entitled to dismiss the Applicant for lack of capability".
We suspect that the Tribunal did not have the benefit of the clear and succinct submissions which we have had from Mr Flynn today from the representative of the Company who represented it there. If they had, the members would have differently resolved the difficulty to which they referred. Mr Flynn has persuaded us that the Tribunal failed to take any or any sufficient account that the original contract into which Mr Fowler entered was one for employment in a Youth Training Scheme, and thus the need to take account of it in construing the document of 16 March and 1 April was in the light of that historical context. Members of this Tribunal with Industrial Tribunal experience know that training schemes expire when a trainee reaches the age of 21. It is then open to the employing Company to end employment at that date. The Tribunal failed here to take sufficiently into account the clear terms of the letter dated 16 March and the document of 1 April 1992 signed. These documents made clear that there were variations of Mr Fowler's original Youth Training Contract made when he attained the age of 21, variations to which he agreed.
In those circumstances, we are satisfied that the Company was entitled to terminate Mr Fowler's employment in the way which it did and that it did so quite fairly. It is neither surprising nor relevant that the training contract failed to contain the stipulation mentioned in paragraph 4 of the Reasons. The fact that Mr Fowler did not have a contract of apprenticeship is likewise irrelevant, as are the findings regards his unfulfilled expectations. In the circumstances, we will allow this appeal and substitute a finding that Mr Fowler was properly dismissed by the Company.
We should say that when addressing us, Mr Fowler attempted to tell us some of the facts which are not found in the Full Reasons of the Industrial Tribunal, but we did not permit him to give evidence. As we explained to him we are not entitled to take account of facts not found by the Tribunal and, secondly, we think that if there had been below the legal analysis of the documents before the Tribunal given to us by Mr Flynn, the result which we have found to be proper would have been found there. Accordingly, additional facts would not have altered the position.