Appeal No.EAT/1240/99 

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 November 2000

Before
HIS HONOUR JUDGE H WILSON
MR I EZEKIEL
MR H SINGH

MISS E ROBINSON	APPELLANT

THE ROYAL BRITISH LEGION ATTENDANTS CO LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	The Appellant 
in person	
For the Respondent	MR G FOXWELL
(of Counsel)
Instructed by:
Messrs Eversheds
Solicitors
Daedalus House
Station Road
Cambridge CB1 2RE	

JUDGE H WILSON

1	We have been concerned today with the full hearing of the appeal by the original Applicant against the decision of the Chairman sitting alone in Manchester on 21 May 1999, that her application should be struck out.  

2	The Applicant had in fact made two complaints: one of which was for breach of contract, and the second of which was that she had not received a written statement of reasons, or rather that the statement she had received was inadequate and untrue.  

3	To deal with that second application first: the striking out must stand because, as the Chairman sitting alone rightly identified, the Applicant does not qualify, by virtue of Section 92(3) of the 1996 Act to bring a complaint, and she does not come within any of the exceptions.

4	The complaint of breach of contract is a different matter.  The Chairman sitting alone said that she noted the first paragraph of the disciplinary procedure, which stated that the procedure is non-contractual, and applies to all employees.  However, in view of the fact that the procedure was non-contractual, and the Applicant agreed to this on 11 January 1999, failure to follow the disciplinary procedure cannot be a breach of contract, and therefore she dismissed the application.  

5	We have been assisted today by Miss Robinson, who has conducted her own case, and the Respondent has been represented by Mr Foxwell.  As a matter of procedure, our initial step was to direct that the name of the Respondent be corrected to “Legion Security PLC” and we give that direction.  So far as the submissions made to us are concerned, Miss Robinson said that the Chairman did not act on the contractual documents which made up the case.  It was not just a question about the letter of appointment: there were several documents which were relevant.  The Appellant says that she was not appraised or monitored, and was given no warnings and received no complaints.  She points that if anybody is going to be dismissed it has to be by the Chief Executive, and that that was not done in her case.  

6	Mr Foxwell has submitted a Skeleton Argument which we have found of great assistance and he has also made oral submissions in amplification of that Skeleton.  In particular he has referred us to the cases of Janciuk v Winerite Ltd [1998] IRLR 63, Fosca Services Ltd v Birkett [1996]  IRLR 325, and White v LTE [1981] IRLR 261.  He has also referred to Reigate v Union Manufacturing Co [1918] 1 KB 592, in particular Lord Justice Scrutton’s judgment at page 605, and the well known reference to business efficacy, where implied terms are concerned.  

7	We note what the documents say on the facts.  In particular there is a document which is called “Terms and Conditions of Employment Clerical and Administrative Staff”.  That concludes with signatures on behalf of the company, Miss Porter, the Personnel Administration Manager, and then below the statement that she agrees to the terms and conditions of this contract (our emphasis) is Miss Robinson’s signature.  Above both signatures there is a statement that the following documents form part of this statement, or contract, as it is, and the list includes the Employee Handbook.  

8	We have been supplied with a copy of the Employee Handbook which contains disciplinary procedures to do with performance.  We note that there is another document which was attached to the Contract of Employment which is headed “Discipline” and which deals with disciplinary procedures in the usually accepted sense of the word “discipline”.  That code is not contractual and provides that the employers may depart from it if they wish.  We are concerned with disciplinary procedures which state among other things that:

“It must be stressed that Company’s policy is not to terminate employees’ Contracts of employment without careful effort on both sides to correct any failing in the performance of individual duties and responsibilities.”
 …… If an employee fails to give satisfactory performance ……a Manager may interview the employee in order to discuss the problem and possible solutions.”
Nobody will be dismissed:
“with or without notice, by the nominated manager, except after discussion with the Chief Executive.”
That is the only authority by which an employee may be dismissed, and the document concludes with a reference to the right of appeal.  

9	It seems to us that the Chairman, sitting alone, fell into error: the contract itself refers to the “Disciplinary Procedures” which are part of the handbook, and the handbook is one of the documents which the contract says forms part of the “Contract or Statement of Terms and Conditions” - both phrases are used.  Discipline, as such, is not part of the contract, but is attached to it.  The procedures, however, in the sense of performance, are part of the contract.  It is reasonable to assume that the Chairman, sitting alone, was referring to the latter in view of her use of the phrase “disciplinary procedures” and therefore, in our judgment, was clearly in error in law.  

10	We therefore remit this matter to a completely different, full Employment Tribunal to hear the evidence to see whether there was a breach of contract, from which damage flowed.  So far as the other ground of failure to provide written reasons, as I have already indicated, that striking out stands.  

11	Leave to appeal refused.