United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T ROE (of Counsel) Instructed by MESSRS LANDAU & LANDAU 36 Seymour Street London W1H 4WD


 


THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Office Angels Limited wish to make against the decision of an Employment Tribunal Chairman sitting alone, who concluded that the employers, Office Angels Limited, were in breach of contract in they way in which they came to dismiss Simon Michael Edwards, the Respondent to this appeal, who was the Applicant.

As a result of the breach of contract which has been found, the parties had agreed compensation in the sum of £1,582.50. It has to be said that the point at issue between the parties is not one which is governed by the amount of money at stake but is more, so far as the employers are concerned, a question of principle. The issue in a nut shell is whether (despite the fact the Applicant was a probationer) he was contractually entitled to the benefit of the disciplinary procedure. That depends on a proper interpretation of the contract of employment and that in turn involves a consideration of the handbook, which the Applicant was provided with and which substantially governs the terms and conditions of employment. As with all handbooks, it ranges from statements of banality through to contractual promises.

The issue in this case is whether the disciplinary procedure to be found at paragraph 2 is a statement which was intended to have contractual force or not and whether it was to apply to a probationer. In the first place as it seems to us, paragraph 2 of the disciplinary procedure applies whenever it becomes necessary to take action against an employee whose behaviour or performance is unacceptable. The nature of the complaints in this case against the employee, for which he was dismissed, seem to us quite clearly to fall within the description of behaviour or performance. They are listed in paragraphs 3.8 to 3.10.3 of the extended reasons and do not need to be read here. These are all matters which could be described as less serious incidents which give rise to the disciplinary procedure. It is to be noted that in paragraph 2.2 of the procedure there is a reference to further offences or continuing offences and to (by way of contrast) the case of "unsatisfactory performance" which seems to us to be a direct reference back to the paragraph to which we have referred.

It was accepted in argument by Counsel that if the employers had activated the disciplinary procedure, then there were contractual entitlements within it. On the one hand the employers had a contractual entitlement to suspend a person without notice and, on the other, Counsel accepted the employee would have a contractual entitlement under the procedure to appeal to a director. There is nothing in the handbook to indicate that during the period of probationary employment, the disciplinary procedure was not to apply. It seems to us that if it was contractual, (as we think it was) then it was contractual for all people who were given a copy of this procedure without there being an express disclaimer that this was not to apply to people during their probationary period. It would have been possible to have constructed a disciplinary procedure which applied only to those who had passed through the probationary period. Many employers would do that, as that gives them the protection of being able to weed out those who are not qualified for the job they were employed to do and whose shortcomings become readily apparent soon after they have been employed. That was not done in this case.

It seems to us very clear that the Employment Tribunal was well entitled to conclude that this was a contractual entitlement. We do not consider that there is any inherent contradiction between the entitlement to notice on the one hand and the entitlement to a disciplinary procedure on the other. It seems to us that the two fit together perfectly well. Where an employee is being dismissed for a matter which falls within the disciplinary procedure then notice will not be activated until after the end of that procedure. The fact that there is a 7 day notice period in this case is not in any way inconsistent with the operation of the disciplinary procedure as a pre-condition to a lawful dismissal, that is a dismissal not in breach of contract.

It seems to us therefore that there is no merit in the point which is raised in this appeal, which was effectively that the Tribunal erred in law in holding that this procedure should have been operated in the dismissal of this Applicant. We agree with the learned Chairman. We would only add one point which is that this was a case where the Employment Appeal Tribunal President has been greatly assisted by the wisdom of his two lay members and their experience of how disciplinary procedures operate in the workplace and what is to be expected in relation to probationers and so forth. In this case, the Employment Tribunal Chairman sat on his own. He was thus deprived of the benefit of the words of wisdom of his lay colleagues. This is another example, as it seems to us, of a case where it would have been better for all concerned if it had been initially considered by a full Tribunal. That said, we would wish if we may to pay particular tribute to this learned Chairman for the very clear and cogent way in which he has set out his decision. As we say, there is no merit as we see it in the appeal which is raised and no arguable point of law and accordingly the appeal will be dismissed.

We were asked for leave to appeal to the Court of Appeal. We dismiss that application. It seems to us a logical and necessary conclusion from our conclusion on the main part of the appeal that there is no point of law. There is actually no point of principle. It is our experience that many disciplinary procedures are regarded by Employment Tribunals as having contractual effect and it is right that they should do so in these times. Accordingly there is neither a point of law on the case itself nor any point of principle which we can see which would justify us granting leave.