United Kingdom Employment Appeal Tribunal

APPEARANCES

 

The Appellant neither present nor represented.


 


JUDGE ALTMAN:

1. This is an appeal from the decision of the Employment Tribunal sitting at Newcastle Upon Tyme on the 26 January 1999. It comes before us by way of preliminary hearing to determine if there is a point of law which justifies argument in full before the Employment Appeal Tribunal. The Appellant employee claimed breach of contract before the Employment Tribunal in his originating Application and he alleged that, having been absent from work for various reasons, he received a letter of dismissal. He complained of a breach of contract because the Respondents did not adhere to the disciplinary procedure and that there were good reasons for his non-attendance at work.
2. The Appellant does not appear today no doubt because he would have had to travel a long way to come but we have had the opportunity of reading the Notice of Appeal that was drafted on his behalf and Counsel's opinion that was obtained for the purpose of considering whether legal aid should be granted.
3. The Employment Tribunal considered the facts of this matter in some detail which we only summarise. They found that the Appellant had received an offer of employment, a principal statement of the main terms and conditions of employment, a company handbook including a disciplinary procedure, but also a standard letter indicating an amendment to the handbook which took place three months before the Appellant began work. They rejected the Appellants evidence that he had not received the documents; some of the documents were custom made, as it were, with his name.
4. The Employment Tribunal pointed out that the main claim in their words was that the Appellant

"was entitled to damages based on the proposition that he had a contractual right to follow the Respondent's disciplinary procedure and that if that right had not been denied to him his employment would have continued for an extra two months".

5. The Employment Tribunal found that having begun work in November 1997, he had to undergo a six month probationary period and that the Respondent expressly reserved the right to extend or terminate the probationary period during it's currency. Contractual entitlement to notice was one week but after that it increased to four weeks during the period that was relevant so far as the Tribunal was concerned.
6. Up until May 1998 the Appellant's work was satisfactory but then there were some absences which the Employment Tribunal dealt with in some detail. Initially there was a week off due to family bereavement, then four days due to medically certified absence, and then a return to work until the end of May but from the 26 May a further period of certified sickness absence until the 12 June due to anxiety. The Employment Tribunal found that in the meantime during the period the 12-19 May attempts were made to contact the Appellant. We believe that that must refer to June rather than May and follows on from the earlier paragraph. From the 12-19 June there were absences. The Appellant agreed that he may have been out. His girlfriend answered the phone on one occasion to say that the appellant was in bed and although the company car was not parked outside the premises an address was given as to where it was being garaged. The Appellant had arranged through his girlfriend to go and meet the Respondents' representatives to collect the car but he did not arrive, certainly during the ½ hour after the time arranged although someone else did.
7. The Employment Tribunal found that the Respondents concluded that the Appellant was being uncooperative and that he should be dismissed. On the 19 June a letter was sent terminating his employment in accordance with the terms of the probationary period, one weeks notice pay was given and the Appellant was invited to discuss the matter further, but the Employment Tribunal found as follows:

"The purpose of the discussion was expressed to be purely to explain the reasoning behind the dismissal".

8. In any event the Appellant did not attend that meeting and simply began proceedings with the Employment Tribunal. The essence of the Tribunal's decision was then contained in Paragraph 7. They found that there was an express term specifically excluding the contractual right to a disciplinary procedure. This was not a claim for unfair dismissal because the appellant did not have the requisite two years service and the Employment Tribunal therefore was solely concerned with a breach of contract. As the Employment Tribunal pointed out, the exclusion of a right to a disciplinary procedure would have been ineffective after two years service and the Employment Tribunal refer to authority as to what exercises they would then have had to have embark on. But they emphasised the express exclusion of the right to a disciplinary procedure in their decision. And it was included in the contract.
9. Then the argument was presented to the Tribunal that they should find an implied term of an entitlement to be dealt with in accordance with an established disciplinary procedure based on the case of WA Gould (Pearmark) Ltd V McConnell (1995) IRLR 516. That was the case in which the employment Tribunal implied into contracts in employment a term entitling an employee to a reasonable opportunity to obtain redress of any grievance. That is a wholly different matter for two reasons.
10. First of all, it is to do with grievance, which the Employment Tribunal points out is a matter here that the employer is obliged to offer.
11. And secondly, in the instant case the Employment Tribunal have found an express term excluding that right in any event. It is a matter of trite law that evidence will not be admitted in support of an implied term which is contrary to an expressed term of a contract. We would only observe that the very nature of the existence of legislation to protect employees from unfair dismissal must have been necessary because the common law did not imply such a term into contracts of employment. The protection required from a fair procedure, which the introduction of that right to claim unfair dismissal brought about for the first time, was unlike a grievance procedure where effect was given to the intention of parliament by implying a term. In the case of a disciplinary procedure there is no such argument available.
12. The Employment Tribunal then considered the right to extend the probationary period and came to the conclusion that four weeks rather than one weeks notice should have been paid for, and made an order in the Appellant's favour on that basis. The Notice of Appeal in this case contains that in the following words

"The tribunal, in determining whether there had been breach of contract (specifically non adherence to the company's disciplinary procedure), and with specific reference to Paragraph 7 of it's extended reasons, misdirected itself as to the law, in that it failed to take account of the legal concepts set out in WA Gould (Pearmark) Ltd V McConnell (1995) IRLR 516".

"The Tribunal misunderstood the said legal concepts".

13. We have considered the decision very carefully and the argument set out in the decision of the Employment Tribunal. It seems to us that they clearly did take account of the legal concepts set out in that case, and having analysed their reasoning, we do not consider that they misunderstood this concept. Nor do we consider that there is any argument which could be raised that they had misunderstood them.
14. The reasons supporting the ground of appeal do not acknowledge the pre-eminence of an express term in the face of an allegation that a term is to be implied. It is also suggested that there is no unilateral right to dismiss at will. That is quite right. This was a wrongful dismissal in breach of contract, and the Employment Tribunal so find. The fact that the pleading was on a false basis, as alleged, in that the initial probationary period was not still current as the respondents alleged does not seem to us to take the matter any further forward. We consider that the decision of the Employment Tribunal is unassailable on any argument which suggests there was any error of law and the appeal is dismissed at this stage.