Employment Judge HolmesNot in attendance for claimantMr C Taft (instructed by Counsel) for respondentDate 22 February 2018
JUDGMENT
It is the judgment of the Tribunal that the hearing of the preliminary issue in this matter to determine whether the claimant’s claims should be struck out is adjourned to be determined in Chambers on 12 June 2017. The parties are not to attend. CASE MANAGEMENT ORDERS It is the order of the Tribunal that:[1]By 10 April 2017 the claimant do reply in writing to the Tribunal’s questions set out below: Questions for the claimant to which she is requested to reply, where possible, by either “yes” or “no” – a) Does the claimant intend to attend (or be represented, if not appearing in person) at the resumed final hearing of her claims? b) If so, and the claimant is unwilling to continue to answer oral questions from the Tribunal, is she willing to answer , within a reasonable timescale , written questions posed by the Tribunal in respect of her evidence ? c) If the claimant is willing to attend the resumed hearing, does she wish to re – examine herself, i.e. to give clarification of her evidence thus far , as previously explained to her ? d) If not , is the claimant content to waive her right to re-examine herself, , so that the totality of her evidence will be her cross examination , and her answers to the Tribunal’s oral and written questions? e) If the claimant intends to attend the resumed hearing, is it her intention to cross examine the respondent’s witnesses? f) If not, does the claimant forgo her right to cross examine the respondent’s witnesses? g) If not, how does she propose that the evidence of the respondent’s witnesses is challenged, and her case put to then? h) Is the claimant content to remain present during the remainder of the hearing and to note the evidence given by the respondent’s witnesses, and the closing submissions made by Mr Taft , so as to enable her to make her own final submissions at the conclusion of the hearing? i) If not, how does she propose the remainder of the hearing is conducted? j) How else, if not by the means set out above, does the claimant propose that the Tribunal proceeds with the rest of the hearing of her claims?[2]The respondent shall, by 5 May 2017, provide to the Tribunal, and copy to the claimant, any further written submissions in relation to the proposal to strike out the claimant's claims in the light of the claimant’s responses to the Tribunal’s questions.[3]The Tribunal will reconvene in chambers on 12 June 2017 to consider further the proposal to strike out the claimant’s claims in the light of the further written representations so received.
REASONS
[1]The Tribunal this morning has re- convened to hear by way of a preliminary hearing whether the claimant's claims in this matter should be struck out pursuant to rule 37(1)(e) on the basis that a fair hearing is no longer possible.[2]The events giving rise to this hearing go back to the hearing that was conducted by the Tribunal on 12-15 December 2016 , when the hearing of the claims commenced before the Tribunal, and the claimant gave evidence. However, in the course of that evidence, and whilst she was in fact answering questions from the Tribunal, the claimant became upset, and her behaviour in the Tribunal was such as gave concerns as to her wellbeing. The events in that hearing are set out in the Tribunal’s judgment sent to the parties on 4 January 2017. Consequently that hearing was adjourned, and the Tribunal directed that the claimant, who suffers from paranoid schizophrenia, confirm in writing to the Tribunal that she was fit, and willing, without condition to resume giving her evidence to answer questions from the Tribunal, and thereafter re-examining herself so that her claims could thereafter proceed to a conclusion.[3]Following that order the claimant did indeed write to the Tribunal on 12 January 2017, a letter in which she said the following: “I confirm that I, X is fit, however unwilling to resume giving evidence and answer questions from the Tribunal.”[4]Having received that letter and finding it somewhat ambiguous the Tribunal; wrote to the claimant on 20 January 2017 seeking clarification of what exactly it was that the claimant was saying ,because having said on the one hand that she was fit to attend a hearing, she then went on to say that she was unwilling to resume giving her evidence. The Tribunal accordingly sought clarification of her response.[5]That came in a letter dated 26 January 2017, in which the claimant said: “As stated on the letter to Manchester Employment Tribunal’s letter dated 12/01/2017 my response remains the same”, and she enclosed a further copy of her previous letter.[6]In those circumstances, the Tribunal wrote again to the claimant on 7 February 2017 informing the claimant that as she was saying that she was unwilling rather than unfit to attend the resumed hearing, the Tribunal was now considering whether to strike out her claim pursuant to rule 37(1)(e) of the 2013 Rules of Procedure, on the grounds it was no longer possible to have a fair hearing in respect of the claim. That letter set out the reasons for the Tribunal considering making such an order, but giving the claimant an opportunity to respond to that proposal and in particular as to whether she wished to attend a preliminary hearing to determine that issue.[7]The claimant replied by a further letter on 9 February 2017 in which she said: “I want to object to the proposal, seek a hearing of the issue alone and not to resume the full hearing immediately after the issue is determined which I attend in person.”[8]That was a reference to the Tribunal’s letter which indicated that the proposal for a strike out would be considered, but that the full hearing, if that application was not granted, would not then resume immediately.[9]That letter too was somewhat ambiguous in the Tribunal’s view, so the Tribunal communicated further with the claimant, and this hearing was listed. The Tribunal’s letter of 1 March 2017 set out this hearing date and the length of hearing. The letter invited the claimant to confirm whether she wished to attend, or make written representations.[10]The claimant's next communication to the Tribunal was on 13 March 2017 in which she said this: “As stated the letter to Manchester Employment Tribunals dated 12 January and confirmation on 26/01/2017” and she repeated what she said in that letter, that she was unwilling to resume giving evidence although she was fit. she then carried on to say, “Therefore will not attend the listed preliminary hearing on 21/03/ 2017 at 10.00am …..”.[11]The Tribunal having received that letter wrote further to the claimant on 15 March 2017, noting that she was not going to attend the preliminary hearing but asking if she had any written comments to make as to why the claim should not be struck out on the grounds that a fair hearing was not possible, and she was invited to send her comments to the Tribunal as soon as possible, and at the latest by 20 March 2017, which was of course yesterday.[12]The Tribunal today, however, received in the post a letter from the claimant dated 17 March 2017, which was of course Friday, in which she says this: “A fair hearing is not possible therefore the claim should not be struck out. I receive your letter on 16/03/2017 stating to respond to you by 20/03/2017 which allows me only 1 day to prepare and write a statement to you as 18/03/2017 and 19/03/2017 is weekend where it is non postal days. You have never taken my Disability into consideration, I am always pushing myself to prepare and write my statement to you before your deadline allowing me no time to rest, taking away my human rights and giving me no justice.”[13]That was, as I say, received by the Tribunal this morning. The respondent has attended and is represented again by Mr Taft, who has appeared for the respondent throughout these proceedings, and he was given a copy of that letter for his perusal not having had, obviously, the chance to see it before the hearing.[14]The Tribunal having received that letter, whilst it is not an application for a postponement as such, did note that the claimant was appearing to complain that she had had insufficient time to make written representations in relation to the proposal to strike out her claim. The Tribunal raised, therefore, with Mr Taft how it should proceed in these circumstances.[15]Mr Taft for the respondent had previously been instructed to pursue the application that the claim be struck out today, and in the absence of any counter instructions that was his primary position.[16]The Tribunal, however, was concerned, particularly bearing in mind its duty to make reasonable adjustments for the claimant's disability, which, of course is her condition of paranoid schizophrenia, that to proceed when she was claiming that she had had insufficient time to make written representations in relation to the proposal to strike out her claim was a matter of some concern, and may amount to a failure to make reasonable adjustments for her disability. As Mr Taft in his candid submissions has acknowledged, striking out a claim, of course, is a draconian and extreme measure, and one that the Tribunal will only take in the most extreme circumstances. In these circumstances to do so without giving the claimant a final opportunity to make written representations as to why such an order should not be made is one the Tribunal is loathe to contemplate if there is an alternative.[17]The Tribunal therefore raised with Mr Taft the possibility of not making a decision today, but giving the claimant a final opportunity to make written representations in relation to this issue. Further, it seemed to the Tribunal that it may be beneficial for both parties to consider other alternatives, and to clarify precisely what the claimant's position is.[18]From the quotations made from the correspondence received from the claimant, the Tribunal’s impression was that, whilst she was saying that she would not re-attend a hearing, and go back into the witness box to answer questions from the Tribunal, and to complete her re-examination, the claimant was not saying, in terms, that she would not attend a resumed hearing. That raises the possibility, the Tribunal considers, of her attending a resumed hearing but not giving any further evidence, or certainly any further oral evidence, but the claimant still participating particularly by cross examining the respondent’s witnesses who, of course, will be the next witnesses.[19]The Tribunal therefore considers it an avenue worth exploring to see if the claimant is in fact saying what the Tribunal understands her to be saying, and whether, on that basis, she is prepared to attend a resumed hearing to continue with cross examination, indeed, commence cross examination, of the respondent’s witnesses.[20]In terms of her own evidence, the Tribunal considers it worth exploring with her whether she is prepared to complete the remaining questioning from the Tribunal by answering written questions from the Tribunal. Further, in terms of reexamination, which the claimant had had explained to her, and indeed did indicate in the course of the previous hearing she would prepare for herself, as to whether, if she felt unable to complete that, she would give up her right to re-examine herself. If she accepts those limitations and is prepared to deal with written questions from the Tribunal in her own evidence, that may (and the Tribunal puts it no higher) be a way in which the hearing could be resumed, and she could then proceed to cross examine the respondent’s witnesses when they gave evidence.[21]The respondent, of course, has not at this stage had an opportunity to consider that as an alternative way of dealing with this issue, and much of course depends upon what the claimant herself says.[22]Consequently, the Tribunal has decided that it will not determine this application today, and with sympathy for the respondent’s position, and the understandable desire to reach a conclusion of this case which is at risk of being prolonged, and becoming unwieldy, and indeed impossible to conclude unless resumed soon, the Tribunal will not decide the issue today, but proposes instead to write to the claimant and ask her some very specific questions to clarify once and for all what her position is in relation to how the claim can be dealt with going forward. Once those questions have been answered, the respondent will have the opportunity to look at the answers and to make its own submissions in relation to whether in the light of those answers, the contention is pursued that there can no longer be a fair hearing. Much of course depends on what answers the claimant gives, and it may well be that certain answers will dictate that there will be an obvious conclusion to this issue.[23]The claimant should also be clear that, even if she is able to answer all the questions from the Tribunal as to how she is willing to proceed in the affirmative, and is able to resume the hearing in some form, that that may not be sufficient . The respondent may still take the view, and the Tribunal may agree, that that is not sufficient, and that a fair hearing is indeed still not possible. But the time at which that should be determined, it seems to us, is when the claimant’s position has been further clarified, and she has had the time that she says she needs to respond to this application, and further that the respondent then has the final opportunity to comment upon her responses. The Tribunal can then consider the issue in the light of all that information.[24]So, for those reasons the Tribunal is going to adjourn this matter. It will issue directions to the claimant, and the respondent as to the timescale for the further submissions to be received. It will then reconvene in chambers and will seek to make a decision on the application. If that is not possible and a further hearing is needed the parties will be notified, but it is hoped that the responses received from both the claimant and the respondent, in writing, will enable the Tribunal to make a final decision as to the future conduct of this claim.[25]As previously, the claimant is urged to seek advice, legal or non - legal, and assistance from her health care professionals, support workers, or family or friends in her dealings with these claims.[26]That, then was the position as at the date of the original decision to dismiss. There was, of course, an appeal, to LH. It is of course trite law that a fair appeal can cure an unfair dismissal, and whether or not it does so is a matter for the Tribunal to consider in all the circumstances, and there should not be over much focus on whether the appeal is a re-hearing or a review (see Taylor v OCS Group Ltd [2006] ICR 1602 ) . That said, as LH says in para. 15 of his witness statement, his role was not to re-perform the original decision , and replace the decision of the Decision Maker with his own, but to consider whether the original decision could be classed as reasonable. As such, therefore, this was a review, not a re-hearing type of appeal.[27]For the appeal LH did not obtain any further medical evidence. There was no further referral to occupational health. Given that the RR had concerns as to whether the claimant would receive the support that she needed , a decision that was to be taken at the end of November, it is surprising that LH did not feel the need to obtain further medical evidence. As it was , the claimant was saying at this meeting that she felt fine, and was ready to be back at work. She said she was taking her medication, and had appointments to see a psychiatrist.[28]If anything, the claimant’s position by the time of the appeal was better than it had been at the time of RR’s meeting with her on 21 September 2015. At that time, and after the OH report of 5 October 2015 there was some question as to whether the claimant would be able to sustain the recovery that Dr Bollmann’s report anticipated. Whilst RR doubted that prognosis, by the time of the appeal , that period had elapsed, the claimant continued to be under the care of a community team, was taking her medication and was due to see a psychiatrist again. Given that one might have expected the fact of her dismissal to have had a negative effect upon her mental health, the fact that she was feeling she could return to work, and was ready to do so was , or should have been , a further positive indicator. LH, however, in para. 19 of his witness statement recognises this, but says that he did not feel there was “enough evidence” of this. He did not, however, make a further referral to occupational health, and ignored the rather obvious fact that there was indeed evidence in the form of the elapse of time , now two months, from the date of Dr Bollmann’s report , during which there had been no further problems , and the claimant’s recovery was indeed progressing as Dr Bollmann’s report anticipated it would. Whilst he “felt” (his word) there was not enough evidence to show that the claimant could cope with the demands of a return to work, like RR before him, he too was content to substitute his unqualified view of these medical issues, rather than make any further enquiry.[29]Finally, in relation to the effect of the claimant’s absence upon the department, he briefly addressed this in the concluding paragraph of his appeal letter, and amplifies this in para. 20 of his witness statement. With respect to him, both are no more than generalisations , where he says what the respondent “would do” in such circumstances. Like RR before him, he obtained no information whatsoever as to the actual position, nor as to how the claimant’s absence had in fact been managed during the 4 months she was off work, nor did he address the specific issue raised by the union representative as to the fact she had not been replaced since her dismissal. LH appears to have accepted that contention , but to have ignored these further factors, and concentrated instead on the decision of the Decision Maker at the time that she took it. He concluded that it was a reasonable one. For the reasons set out above, we find that it was not. The appeal , therefore, did not begin to remedy the unfairness of the original decision, and rather compounded it, missing a golden opportunity to explore further whether the claimant could then actually return to work.[30]For all these reasons, the Tribunal finds that the dismissal of the claimant, whilst clearly for the potentially fair reason of capability, was unfair. The disability discrimination claims.[31]The claimant not being a lawyer and not being able to make closing submissions, did not expressly address what type of disability claims she was making. In essence, the Tribunal considers that they are basically that the respondent failed to make reasonable adjustments for her, i.e those suggested in Dr Bollmann’s report of 5 October 2015 to facilitate her return to work, and supporting a longer period of sickness absence, and that her dismissal was an act of dismissal by reason of something arising as a consequence of her disability (a s.15 claim), which the respondent could not justify. To some extent the issues have changed a little from those identified in the preliminary hearing on 3 May 2016, and , in essence, the s.15 claim is the main claim, which if successful, rather obviates the need for any further consideration of any reasonable adjustment claims. The PCP of trigger points under the absence procedure is not really the issue. Mr Taft’s submissions anticipate that these are the two claims that the claimant makes. Further, he concedes that the claimant’s dismissal was something which arose in consequence of the claimant’s disability, and hence the only issue is whether the respondent can justify it. In his submissions Mr Taft identified as the legitimate aims “the institution and enforcement of reasonable attendance management policies and procedures” and “the efficient running of the respondent’s business”. He argues that the decision was proportionate because there was no realistic or reasonable alternative on the evidence as it appeared to the dismissing officers.[32]The need to consider more favourable treatment for disabled people, as required when there is a duty to make reasonable adjustments, means that employers must assess on an individual basis whether allowances or adjustments should be made for them: Griffiths v Secretary of State for Work and Pensions [2016] IRLR 216. In Buchanan this finding from Griffiths was emphasised in the context of holding that it was ‘impossible to assess’ whether a particular step was a proportionate means of achieving a legitimate aim simply by looking at the policy itself; rather, there was a requirement to ask whether the treatment was justified by considering how the policy was applied to the individual in question. In the case law, the ingrained consideration of the duty to make reasonable adjustments seems to be evidenced by the discussion (at para [56]) that the aims of the police force would ‘no doubt include’ supporting a disabled employee and considering termination fairly where ‘an absence can no longer reasonably be supported’; this could properly be interpreted to mean when all reasonable adjustments have been made. There is thus an interrelationship between reasonable adjustments and proportionality.[33]In terms of this justification defence , as the caselaw (Hardy v Hansons plc v Lax [2005] ICR 1565 , Hensman v Ministry of Defence [20114] EqLR 670 , Buchanan v Commissioner of Police for the Metropolis [2016] IRLR 918 ) makes clear, it is for the tribunal to make its own , objective , judgment on the issue. The tribunal does not apply the “range of reasonable responses” test that it does in unfair dismissal to the issue of justification. The question is not whether the respondent reasonably believed that the treatment was justified as a proportionate means of achieving its legitimate aim, but whether, in the tribunal’s own objective view, it was. To that extent, therefore, with respect to Mr Taft, the Tribunal is not confined to an examination of what the evidence available to the dismissing officers was. Conversely, the tribunal is not limited to consideration of matters which were in the mind of the employer at the time. Ex post facto justification can therefore be relied upon even if not in the mind of the respondent at the time.[34]In terms of the legitimate aims, whilst the second identified by Mr Taft, the efficient running of the respondent’s business is one the Tribunal can recognise and accepts as a legitimate aim, the first “the institution and enforcement of reasonable attendance management policies and procedures” as a legitimate aim requires qualification. In any event, as the caselaw makes clear the Tribunal must look at the application of the policy to the individual. Thus whilst the institution and enforcement of a policy may be a legitimate aim, the Tribunal has to consider whether, on the facts of this case, the application of that policy to the claimant was a proportionate means of achieving that aim.[35]Taking all the factors into account in this case, the tribunal does not find that the respondent’s treatment of the claimant was a proportionate means of achieving the legitimate aims. As observed in O’Brien v Bolton St Catherine’s Academy [2017] IRLR 547 the assessment of reasonableness for the purposes of determining the fairness of a capability dismissal is unlikely to differ markedly from the test of proportionality for the purposes of a justification defence under s.15. We do indeed consider that the same factors which led us to hold that the dismissal was unfair under s.98 lead us also to conclude that the defence of justification is not made out, as the dismissal was not a proportionate means of achieving the legitimate aim. Indeed, some factors are rather more prominent in the consideration of proportionality than they are in the test of reasonableness, where, of course, the tribunal is constrained by the prohibition of substitution of its own views, whereas it is not in the assessment of proportionality for the purposes of the s.15 claim. To that extent, we consider that the requirement upon an employer, in the case of a disabled employee to “go the extra mile” , in terms of seeking further medical evidence, and exploring all other reasonable avenues for a return to work, including redeployment outside the department , are highly relevant factors in deciding whether the treatment was proportionate. We consider here that the respondent did very little to find alternatives that may have kept the claimant in work, or to make the adjustments suggested by Dr Bollmann in her report of 5 October 2015. For much the same reasons as the Tribunal has found the dismissal unfair, it finds that the respondent has failed to justify the dismissal for the purposes of s.15.[36]Thus we find that the respondent failed to make reasonable adjustments, in that they dismissed her, rather than allowing the claimant to return to work on a phased basis, and discriminated against the claimant because of something arising in consequence of her disability, and the respondent has failed to justify such treatment. The Notice Pay claim.[37]This is a separate and discreet claim, unrelated to the unfair dismissal and discrimination claims. There is only one issue, namely to what period of notice was the claimant contractually entitled ? This calls for construction of the written contract of employment.[38]According to Chitty on Contract 32nd Edition , Chapter 13 , Section 3, the word “construction” refers to the process by which a court determines the meaning and legal effect of a contract. As such, it will embrace oral contracts as well as those in writing and implied terms as well as those that are expressed. In this chapter, however, the principles of construction discussed in the following paragraphs have mainly been developed in relation to written documents, and in this context “construction” denotes the process (sometimes referred to as interpretation) by which a court arrives at the meaning to be given to the language used by the parties in the express terms of a written agreement..The object of all construction of the terms of a written agreement is to discover therefrom and from the available factual background the meaning of the agreement.[39]The task of construing a written agreement has been said to be that of ascertaining the “common intention of the parties” to the agreement. But this may be misleading since it is clear that the agreement must be interpreted objectively. The question is not what one or other of the parties meant or understood by the words used but rather what a reasonable person in the position of the parties would have understood the words to mean. In Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 Lord Hoffmann said: “Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.”[40]The words of the agreement must be construed as they stand. That is to say the meaning of the document or of a particular part of it is to be sought in the document itself: “[o]ne must consider the meaning of the words used, not what one may guess to be the intention of the parties” (see IRC v Raphael [1935] A.C. 96 ). However, this is not to say that the meaning of the words in a written document must be ascertained by reference to the words of the document alone. The courts will, in principle, look at all the circumstances surrounding the making of the contract and available to the parties (usually referred to as the “factual matrix” or “available background”) which would assist in determining how the language of the document would have been understood by a reasonable person in their position. The range of materials on which the modern courts now draw is considerably wider as the ambit of the “factual matrix” has increased, permitting the court to draw upon a greater range of materials when seeking to put the words of the contract in their context and interpret them accordingly[41]Mr Taft’s submissions on this issue (para. 20) are that the respondent’s position is that the paragraph in question in the claimant’s contract of employment , i.e. that set out at page 54 of the Bundle, “is misplaced and must result from a formatting error, appearing as it does beneath the heading “Redundancy”.” He goes on to argue that any ambiguity is resolved by reference to further information on notice which can be found on the Department’s intranet site, and he has produced two documents from that site.[42]That submission raises a number of issues. Firstly, should the Tribunal consider any extraneous material at all, or should its enquiry be confined to the terms of the written document? It is often said to be a rule of law that: “If there be a contract which has been reduced to writing, verbal evidence is not allowed to be given … so as to add to or subtract from, or in any manner to vary or qualify the written contract.” Indeed, in 1897, Lord Morris accepted that: “… parol testimony cannot be received to contradict, vary, add to or subtract from the terms of a written contract, or the terms in which the parties have deliberately agreed to record any part of their contract.” This rule is usually known as the “parol evidence” rule. Its operation is not confined to oral evidence: it has been taken to exclude extrinsic matter in writing, such as drafts, preliminary agreements, and letters of negotiation. That would presumably also extend to policy and procedures on an intranet site, in this more modern context. The rule has been justified on the ground that it upholds the value of written proof, effectuates the finality intended by the parties in recording their contract in written form, and eliminates “great inconvenience and troublesome litigation in many instances”.[43]However, the parol evidence rule is and has long been subject to a number of exceptions. In particular, the courts have been prepared to admit extrinsic evidence of terms additional to those contained in the written document if it is shown that the document was not intended to express the entire agreement between the parties. In Gillespie Bros & Co v Cheney, Eggar & Co [1896] 2 Q.B.59, Lord Russell C.J. stated: “… although when the parties arrive at a definite written contract the implication or presumption is very strong that such contract is intended to contain all the terms of their bargain, it is a presumption only, and it is open to either of the parties to allege that there was, in addition to what appears in the written agreement, an antecedent express stipulation not intended by the parties to be excluded, but intended to continue in force with the express written agreement.” It cannot therefore be asserted that the mere production of a written agreement, however complete it may look, will as a matter of law render inadmissible evidence of other terms not included expressly or by reference in the document: “The court is entitled to look at and should look at all the evidence from start to finish in order to see what the bargain was that was struck between the parties.”[44]It follows that the scope of the parol evidence rule is much narrower than at first sight appears. It has no application until it is first determined that the terms of the parties’ agreement are wholly contained in the written document. The rule: “… only applies where the parties to an agreement reduce it to writing, and agree or intend that the writing shall be their agreement.” Whether the parties did so agree or intend is a matter to be decided by the court upon consideration of all the evidence relevant to this issue. It is therefore always open to a party to adduce extrinsic evidence to prove that the document is not a complete record of the contract. If, on that evidence, the court finds that terms additional to those in the document were agreed and intended by the parties to form part of the contract, then the court will have found that the contract consists partly of the terms contained in the document and partly of the terms agreed outside of it. The parol evidence rule will not apply. If, on the other hand, the court finds that the document is a complete record of the contract, then it will reject the evidence of additional terms. But it will do so, not because it is required to ignore the additional terms or the evidence said to prove them, but because such evidence is inconsistent with its finding that the document does contain the entire terms of the parties’ agreement. No doubt, in practice, where a document is produced which appears to be a complete contract, a party will experience considerable difficulty in proving, on the balance of probabilities, that further contractual terms were agreed outside the written terms of the document. But extrinsic evidence of such terms is not ipso facto excluded.[45]What then is the position here ? The Tribunal has the offer letter sent to the claimant on 8 August 2006 (page 53 of the Bundle), and the enclosed document at pages 54 to 58 of the Bundle. The letter is an offer letter, in which the author (who has not been called, nor has any other factual evidence been led by the respondent on this issue) offers the claimant employment “subject to the terms and conditions of employment of [the respondent] … pending the further development of new terms and conditions of employment….”. The letter continues : “This offer of employment is open for four weeks from the date shown on the front of this contract. If you are willing to accept it please sign both contracts and return one to me as quickly as possible and in any case within four weeks.”[46]The first page of the attached document (page 50 of the Bundle), however, bears no date, although it does provide that the claimant’s employment began on 24 April 2006, presumably because this was a permanent contract, and the claimant had presumably previously been employed on a temporary basis. This document also sates in the Introduction that it is a statement which gives the claimant “particulars of the terms and conditions of employment applicable to her appointment” with the respondent. It is not stated to be a statement for the purposes of s.1 of the Employment Rights Act 1996, but doubtless could be relied upon by the respondent as such a statement if necessary. On page 57, at the conclusion of 8 pages of terms relating to (after formalities as to identity , job title and continuity of employment) : Place of Work Probation Hours of Attendance Pay Overtime Paid Leave Sick Absences Training Notice Redundancy Age of Retirement Pension Arrangements Rules on the acceptance of outside appointments Conduct Discipline Date Protection Use of Departmental Computers Use of official information Grievances Representation Collective Agreements there then appears the following: “Acceptance I accept employment on the basis of the terms and conditions of service contained or referred to in this statement.” The claimant duly signed and returned a copy of the document to the respondent.[47]In the Tribunal’s view that document constitutes the entire contract of employment between the parties. There was offer and acceptance, and the terms of the offer were those set out in the document, which the claimant accepted. The terms are very full, and were clearly intended by the parties to constitute the agreement between them. Whilst there is reference to other documents, and information on the intranet, there is no suggestion (save where the terms of collective agreements are incorporated) that any other document or information will have contractual effect. This would, for instance, be the case, one would expect the respondent to argue, were an employee to seek to argue that the disciplinary procedures referred to on page 55 of the4 Bundle by reference to the respondent’s intranet site had contractual force. Polices and procedures are not the same as contractual terms, and the Tribunal’s conclusion is therefore that the document proposed as the contract of employment and accepted by the claimant does indeed constitute the entire agreement between the parties as to the terms of the contract.[48]There is thus no basis for the admission of extrinsic evidence under the parol evidence rule, the contract must be construed on the basis of its terms alone.[49]Mr Taft’s submission is that the clause relied upon by the claimant is “misplaced” and “must” result from a formatting error. The basis upon which he asserts this (there is no evidence to this effect from anyone) is that the clause in question appears under the heading “Redundancy” , which is not applicable, and hence this must be an error. With all due respect, that does not necessarily follow. The layout of the document has provisions as to notice (the ones the respondent seeks to rely upon) preceding the section headed “Redundancy”. After the redundancy provisions, however, appear these terms: If your employment is terminated compulsorily on any other grounds , unless such grounds justify summary dismissal at common law or summary dismissal is the result of disciplinary proceedings – 6 months. In cases of dismissal for gross misconduct (except where there has been repeated serious misconduct) there is no period of notice. Further information on periods of notice can be found on ‘The Department and You’ intranet site.” The problem for Mr Taft’s argument is that the next clause after the one in issue relates to cases of gross misconduct. Clearly such provisions are also nothing to do with redundancy, but appear under that heading. Further, the ensuing clauses in this part of the document , up until the Age of Retirement provisions, all relate to notice in general, including the notice required from the employee to the employer, again, nothing to do with redundancy. Thus, it is equally possible that the specific redundancy notice provisions are no more than specific instances of notice provisions, and these terms are all really still under the previous heading of “Notice”.[50]Whatever the position, the words are clear, and the mere fact of the position they occupy in the document does not, in the Tribunal’s view, in any way alter or detract from their plain meaning, that if the claimant’s employment was terminated compulsorily on any other grounds , i.e other than redundancy or gross misconduct, she was entitled to 6 months notice.[51]In essence the respondent’s argument is that it did not intend to give the claimant this 6 month notice clause. That may be so, but a contract is to be construed objectively, not on the basis of one party’s intentions. The words are clear, and those were the terms that the claimant accepted.[52]For completeness, however, and considering , though we need not ,the further documents that have been produced, a perusal of them does not, in any event, assist the respondent. Firstly, both documents are expressly only policies. They do not purport to be contractual, and the contractual terms on page 54 refer to “further information” being available in this way. A unilateral policy document cannot have contractual force unless there is clear agreement that should do so.[53]Secondly, it is unclear which document applied at the material time. If it was the 2004 policy, it is to be noted that the section on “levels of notice” states what periods of notice the respondent “will normally offer” the employee. This is not , on any view, a statement of any contractual right, as the words “normally” and “offer. “demonstrate, and to the extent that it is contended that this policy document should override the clear terms of the contract, it manifestly fails to do so. Further, at section 9 , it is provided that employees are entitled to 6 months notice in “other cases”, which follows the section on notice periods in redundancy situations. This 6 month entitlement is excluded in cases where employment is terminated for : . Retirement Inefficiency Disciplinary action Medical Grounds Gross Misconduct Redundancy It is to be noted that SD dismissed the claimant for being unfit for work in any capacity whilst she consolidated her day to day recovery and resilience, taking this from the first paragraph of her dismissal letter (page 341 of the Bundle). In her decision document she amplifies this by saying that she did not believe the claimant was capable of achieving .a satisfactory level of attendance within a reasonable period of time, and “on this basis” she decided she should be dismissed. These reasons are not in the list of excluded other cases, so even on this basis the 6 months notice period would apply.[54]If the 2006 document applies, however, it is again a policy document, and refers to enhanced provision. This is a briefer document, and sets out minimum notice periods for monthly paid staff. Section 1 of this document states that the actual period of notice will depend on length of service, and the reason for termination (emphasis added). Again the Tribunal cannot view this as in any way altering the express provisions .in the written contract.[55]Finally, as Mr Taft refers in his submissions to “any ambiguity” being resolved by reference to these documents, it will be clear that the Tribunal does not consider that these documents do resolve any ambiguity. If, however, ambiguity remains, a further guide (or rule, though the modern approach is to treat such maters as guidance rather than rules) to construction comes into play, and that is the “contra proferentem” principle. This is the principle of construction that a deed or other instrument shall be construed more strongly against the grantor or maker thereof.[56]This rule is often misinterpreted. It is only to be applied to remove (and not to create) a doubt or ambiguity, and as a last resort where the issue cannot otherwise be resolved by the application of ordinary principles of construction.. The principle has been constantly cited as a rule of construction for many years. For instance, Coke , then Chief Justice, said , “[i]t is a maxim in law that every man’s grant shall be taken by construction of law most forcibly against himself”; and in 1949, Evershed M.R. said: “We are presented with two alternative readings of this document and the reading which one should adopt is to be determined, among other things, by a consideration of the fact that the defendants put forward the document. They have put forward a clause which is by no means free from obscurity and have contended … that it has a remarkably, if not an extravagantly, wide scope, and I think that the rule contra proferentem should be applied.” The justification for the rule has been said to be that: “… a person who puts forward the wording of a proposed agreement may be assumed to have looked after his own interests so that if the words leave room for doubt about whether he is intended to have a particular benefit there is reason to suppose that he is not.”[57]If, therefore, there is any ambiguity, and the extraneous material does not resolve it, we would in the alternative find that, as the terms were clearly drafted by and produced by the respondent, and were not part of any negotiation, the respondent is bound by the express term as contended for by the claimant, and she was entitled to 6 months notice upon her dismissal. Remedy.[58]We turn now to remedy. At this stage the Tribunal cannot make any final awards (there is no Schedule of Loss in the Bundle, though one has previously been ordered) , and a remedy hearing, which could also be conducted on paper, may be necessary. At this stage, however, the Tribunal will attempt to assist the parties to either reach an agreement on remedy (for which purpose ACAS can be approached), or to prepare for a remedy hearing. As there are three jurisdictions in respect of which the claimant has succeeded, the Tribunal will deal with each in turn. 1.The Breach of Contract claim.[59]This is the simplest claim, and the basic remedy will be the additional notice pay which the claimant should have received. The Tribunal has determined that she was entitled to 6 months notice, but she received 10 weeks, so she is entitled to a further 16 weeks. The Tribunal has no figures, so cannot calculate this award. The claimant should be aware however, that from this sum deductions will be made for any benefits she received, or income that she received in this period of 16 weeks from the date of the expiry of the initial 10 weeks notice for which she was paid. The Unfair Dismissal claim.[60]There will be two elements to this award. The first will be a basic award calculated at one week’s pay for each year of service (the claimant starting her employment at the age of 25 for 9 complete years), subject to a cap on a week’s pay of £475.. This award is a basic entitlement, and is unlikely to be subject to any deductions.[61]The next element is the compensatory award, which as its name implies, is designed to compensate the claimant for the losses that she has suffered as a result of her dismissal. That will require the Tribunal to know whether, and if so when, the claimant obtained other employment, and if she did not, why. It will be based upon the claimant’s net earnings.[62]Further, there is a cap on the compensatory award of £78,335 , or one year’s earnings, whichever is lower. That is not a cap on the period of time for which the Tribunal can award loss of earnings, it is a financial cap.[63]Additionally, as the claimant will be receiving an award for notice pay, and received 10 weeks notice pay, she will have to give credit for these amounts against the first six months of any loss of earnings claim, as otherwise she would be recovering twice for the same loss. Further, to the extent that she also received a Civil Service Compensation Scheme payment, this too will fall, subject to argument to the contrary, to be offset.[64]Accordingly, if the claimant wishes to claim a compensatory award for loss of earnings extending beyond the initial 6 month period, she should set out what she is claiming, how much she would have earned but for being dismissed, and what, if anything, she has earned during the period for which she seeks loss of earnings.. The Disability Discrimination claims.[65]Under this head, the claimant can seek compensation. One aspect is injury to feelings, for which there are guidelines. If the claimant contends that her dismissal caused her injury to feelings, she should set this out in a further statement. Whilst she is free to suggest a figure for injury to feelings, she is not obliged to do so, she would not be held to any figure she put forward, and the Tribunal will make its own assessment. Guidance is available in relation to the bands for such awards (based on a case called Vento ) which the claimant may wish to consult in this regard.[66]If the claimant seeks to contend that her dismissal caused more than injury to feelings, and caused her actual injury to her health, she would need medical evidence to support this.[67]In relation to other aspects of compensation under this head of claim, the claimant can seek loss of earnings under this head as well, just as she can under unfair dismissal. The difference is that the award for disability discrimination is not subject to any cap. Thus, if she were to seek to recover loss of earnings for a period hat took her beyond the unfair dismissal cap, she could do so under this head.[68]The claimant was dismissed on 8 October 2015. If she has not obtained alternative employment during this time , she will have lost earnings for some just about two and a half years. If she seeks to recover loss of earnings for the whole of this period, and possibly beyond, for she can claim future loss as well, she will need to be able to establish that, but for her dismissal, she would have been likely to have remained employed by the respondent to date, and possibly for even longer.[69]That again is likely to require medical evidence, the burden being upon the claimant to show that , but for her dismissal she would have remained in employment of the respondent either to date, or to some particular date between the date of her dismissal and the remedy hearing.[70]Further, to the extent that the claimant has been unable to obtain alternative employment since her dismissal (and of course this is not known) so as to “mitigate her loss” as lawyers put it, the Tribunal will need to know why she has not done so. Again if there is a medical reason, the Tribunal would need medical evidence on this point. The next steps.[71]The Tribunal accordingly is making orders , in a separate document, for the remedy stage of the case. The first will be for the preparation of a Schedule of Loss (or an updated one) from which the respondent and the Tribunal will be able to see the basic information needed to determine remedy, and what the claimant is seeking. The claimant has previously been referred to the Presidential Guidance – Case Management for guidance on how to complete a schedule of loss, and she reminded to consult it for assistance.[72]The document needs therefore to contain details of: The claimant’s pre – dismissal gross and net earnings. These may have been affected by her sickness absence (the Tribunal has no details of what , if any ,sick pay the claimant was receiving as at the date of her dismissal), and therefore it would be helpful also to have details of the claimant’s normal, full time, earnings. Details of the notice pay received. Details of the Civil Service Compensation Scheme payment received. A calculation of the further 16 weeks notice pay due. Any earnings received by the claimant since her dismissal to date. Details of all state benefits received by the claimant since her dismissal (including a description of the type of benefit, as well as the rate at which it was paid) to date If the claimant is seeking loss of earnings for a period beyond the six month notice period, details of the period over which she is so claiming, and , if she is claiming future loss, the period over which she is so claiming. If the claimant is seeking pension loss in respect of any period, details, if the claimant is aware of them, of the employee’s and employer’s contributions to any relevant scheme To the extent she feels able to do so, the claimant’s suggested figure for injury to feelings.[73]Once the claimant has done this, the respondent will be ordered to provide a counter – schedule of loss, in which it should set out what elements of the claimant’s schedule of loss are agreed , and where they are not agreed setting out the respondent’s figures, calculation or contentions.[74]The claimant will also be ordered to make a further witness statement dealing solely with remedy, in which she should include her evidence as to any injury to feelings or personal injury claimed, her post – dismissal employment history, her attempts to obtain alternative employment, and if unsuccessful, or not made, the reasons for this. She should also include her medical history post – dismissal, dealing specifically with whether, when and for how long she considers that she would have been able to return to her pre – dismissal job.[75]The Tribunal will also order disclosure of any further documents relating solely to remedy, and service of any medical evidence that the claimant, or indeed, the respondent, may want to rely upon.[76]The parties and the Tribunal should then be able to define the issues for any remedy hearing. Parts of remedy may be capable of agreement (the notice pay, the basic award, for example), leaving the Tribunal only to determine those matters which remain in issue. A remedy hearing can then be held, and conducted as best suits the claimant’s current state of health.[77]By way of further assistance, to identify the likely issues, and inform any medical evidence that the claimant , or respondent , may seek the Tribunal has set out at Annex A to the Case Management Orders a draft List of Issues/Questions for medical opinion which may help the preparation or the remedy hearing. These are, of course, only suggestions, and either party is free to add to, or depart from this List as they see fit.[78]Finally, the Tribunal has not heard directly from the claimant for some time, and it is hoped that her health has improved since the last hearing she could attend in December 2016. It is appreciated that it has been difficult for her to bring and conduct this claim, which she has managed without any real support. Now she has a judgment in her favour, it may be that she can seek and obtain some legal advice , or even representation, as to the next stage of the process. If not legal advice, any further assistance or support she can get for the next stage of the proceedings would clearly be beneficial. Employment Judge Holmes Dated : 22 February 2018