Appeal No. EAT/1325/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 May 2002

Before
HER HONOUR JUDGE A WAKEFIELD 
LORD  DAVIES OF COITY  CBE

MR J C SHRIGLEY

MR N DURRANT	APPELLANT

FINANCIAL COLLECTION AGENCY LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	
For the Respondent	MR S CHEETHAM
(of Counsel)
Instructed by:
Streeter Marshall
Solicitors
74 High Street
Croydon 
CR9 2UU	

JUDGE A WAKEFIELD

1	This is an appeal by Mr Neil Durrant against a Decision of an Employment Tribunal sitting at London South on 7 August 2000, by which his complaint of wrongful dismissal was found not to have been substantiated.  

2	The undisputed factual background was that the Appellant had been employed since 22 February 1999 as an IT Manager.  His letter of appointment confirmed that the position was subject to satisfactory completion of a six months probationary period.  

3	The written terms and conditions of the contract included a detailed disciplinary procedure.  This is set out at paragraph 5 (d) of the Employment Tribunal Decision, which was given with Extended Reasons on 13 September 2000.  The procedure provided for the following:
“(i)  If the company is dissatisfied with your conduct or the performance of your duties you will be advised, in the first instance, orally of the nature of the complaint and where appropriate, a period will be set for the required standard to be achieved.  (the Tribunals emphasis) A note of this action will be made in your personnel file.
ii)  If at the end of any period allowed your conduct or the performance of your duties is still unsatisfactory, or has improved but not sufficiently, you will be given a final warning, this time in writing.  A further period may be set for improvement and you will be required to sign a copy of this advice which will also go on your file.  Failure to obtain a satisfactory level of conduct or performance by the end of the second period may lead to termination of your employment.
iii)  The period allowed for improvement will not necessarily be the same”

4	What actually occurred in the course of the Appellant’s employment, until his dismissal by letter dated 17 December 1999, was set out in the Employment Tribunal Decision at their paragraphs 5(e) to (l), as follows:
“(e)  The Applicant was aware that the company (Mr Osman) were not happy with the work that the Applicant was doing.
(f)   There was a meeting between the Applicant and Mr Osman to discuss the work situation.  The Applicant says the meeting was on 13 August before Mr Osman went on holiday.  The Respondent’s evidence is that the meeting was held in the first week in September.  It is not really important for us to decide when the meeting took place.  
(g)  There was a meeting around the August/September time. Various things were discussed and for ease of reference they are referred to at page 25.  We are satisfied on the evidence which we have heard that those matters that are listed in the document at page 25 were discussed at times with the Applicant.
(h)  The Applicant held a senior position in the company, he was highly paid.  The Applicant knew that Mr Osman was not satisfied with the Applicant’s work.  The Applicant admitted that Mr Osman had lost faith with him.  It is common sense that if you are a senior person and management indicate that they are not happy with your work and there are discussions about those concerns that it is not necessary to have a formal oral warning for the employee to improve.  An employee in such a senior position ensures that he improves.
(i)  If that meeting with Mr Osman took place in September the Applicant had time to improve by the time that he was dismissed.  There were unfortunate circumstances that led to the Applicant’s absence for some 3 weeks in October.  
(j)  In November the Applicant was again made aware by the company of their concerns.  The Applicant an experienced operator would have been aware himself of the problems that he was having and he should have taken upon himself to resolve the problems and to improve.  The Applicant also became aware through Miss Evans that the Respondents were in touch with Mr Cox in an attempt to persuade Mr Cox to join the Respondent and to assist them with matters dealt with by the Applicant.
(k)  A Mr Martin who had been employed at about the same time as the Applicant was leaving the Respondent Company.
(l)  On 17 December the Applicant was dismissed by a letter of dismissal dated 17 December giving notice to expire on 14 January.  The Applicant did not receive the dismissal letter until 24 December.  Notice should run from that date.”

5	On the basis of that chronology, the Employment Tribunal concluded in their paragraph 7, as follows:
“The reality was that although not specifically referring to the procedures the Respondent through Mr Osman had notified the Applicant, a senior employee, of their dissatisfaction with his work, the Applicant was well aware of the Respondents concerns, the Applicant knew or must have known he had to improve.  The Applicant’s work was crucial to the company.  Mr Osman considered that the Applicant was not up to the job and did not feel it was appropriate to give a specific period to improve.  Accordingly the Applicant was dismissed on notice.  Although the notice was one week short the ex gratia payment made more than covered the proper amount due to the Applicant.”
And the Tribunal, therefore, dismissed the complaint.

6	This conclusion is criticised in the appeal as being perverse.  It is said that having found that the disciplinary procedure was part of the Appellant’s contract of employment, and that the procedure had not been followed, the Employment Tribunal were wrong in law to hold that no breach of contract had occurred.  

7	For the Respondent it is conceded that the Employment Tribunal may have been in error in not considering specifically whether the failure to follow the disciplinary procedure was a breach of contract, but it is then argued that the findings of fact make any such error academic.  It is said by Counsel for the Respondent that the only departure from the disciplinary procedure was the absence of what is described as “a discretionary fixed period within which to improve”, triggering a written warning.  Therefore, it is argued, it is clear that any finding by the Employment Tribunal that there had been a breach of contract from failure to follow the disciplinary rules would not have altered the Tribunal’s conclusions.  We cannot accept these submissions on behalf of the Respondent.  

8	We are concerned in this appeal, as was the Employment Tribunal, with liability for wrongful dismissal, not with the question of the quantum of any loss which might have flowed.  Where a procedure is laid down as a necessary prelude to a “performance” dismissal and that procedure is incorporated in the employee’s contract of employment, as it was here, then except in cases where gross misconduct justified summary dismissal, that procedure must be followed if the employee is ultimately to be lawfully dismissed.

9	We are satisfied that on the basis of the facts found by this Tribunal, their conclusion that the Appellant had not been wrongfully dismissed was perverse.  We therefore substitute a finding that the dismissal was a breach of the Appellant’s contract and wrongful.  The matter must be remitted for hearing by a freshly constituted Tribunal on the question of whether any, and if so what, loss has flowed from that breach.