Bevan Ashford (A Firm) v Malin [1994] UKEAT 43_94_2012

EAT
Bevan Ashford (A Firm) v Malin
[1994] UKEAT 43_94_2012 · 1994-12-20
MR JUSTICE MUMMERY (PRESIDENT) Bevan Ashford is a large firm of solicitors based in Bristol. Mr John Malin was employed in the firm as Archivist from 26th February 1990 until he was given four weeks' notice on 3rd February 1993 terminating the employment in which he had been responsible for putting away and retrieving completed files and deeds.After hearings on 30th September and 15th November 1993 the Industrial Tribunal at Bristol upheld Mr Malin's claim for unfair dismissal, but found that he had contributed to his dismissal by his conduct and decided that it was just and equitable that his compensation should be reduced by 50%.By Notice of Appeal dated 29th December 1993, Bevan Ashford appeals against that Decision, contending that the Tribunal erred in law in deciding that the dismissal was unfair and in only finding a 50% contribution to dismissal. Mr Malin cross-appeals from the decision on contribution and contends that the Tribunal should not have made any reduction in the amount of his compensation.

The Facts

The critical findings of fact are set out in the Full Reasons notified to the parties on 25th November 1993:(1) On 29th July 1991, Mr Malin received a warning about the quantity and quality of his work. Mr Malin objected to the warning but, even though there had been procedural shortcomings, he did not appeal.(2) Following an interview on 27th January 1992, Mr Malin was given a final written warning contained in a letter dated 29th January 1992 handed to him on 30th January 1992. The letter referred to two areas of "continuing concern": 26 days sickness absence during the calendar year February 1991 to January 1992 and a negative attitude to staff with resultant lack of confidence in the execution of his archiving procedures and a number of complaints about his work. The last paragraph of the letter is important in the light of subsequent events and has been the focus of legal argument both before the Tribunal and on this appeal.
"This letter is a final written warning and will remain on your personal file for a period of 12 months from the date of this letter. Any occurrence which brings your behaviour to the attention of the Partners will be considered grounds for dismissal."
(3) On 29th January 1993, there was an incident concerning the manner in which Mr Malin answered a telephone call to the Office Manager. At a full disciplinary hearing on 3rd February 1993 it was decided that Mr Malin should be dismissed. The decision was confirmed in a letter of the same date in which it was stated that the Firm was satisfied that the telephone incident had taken place as alleged. The letter continued -
"We consider this to be conduct of a serious nature, indicative of a highly negative attitude to an external caller. This is something which the firm is not prepared to accept."
At the time of the incident you were still subject to a final written warning. We also took note of your disciplinary record prior that.In the circumstances, we have decided that the appropriate course of action is to dismiss you on notice. You are entitled to four weeks' notice and your employment will therefore terminate on 3rd March 1993. Your suspension remains in force during your period of notice."(4) Mr Malin was informed of his right to appeal. He exercised that right. By a letter dated 6th April 1993, he was notified that his appeal was rejected. He was informed that his conduct was considered such as to bring the integrity and reputation of the firm into disrepute; that it was a serious offence warranting summary dismissal on its own and that "even if the matter was not viewed as gross misconduct, we take the view that dismissal was justified in view of your previous disciplinary record."

The Tribunal's Decision

On those facts the Tribunal reached the following conclusions:-

(1) Mr Malin was dismissed for misconduct.(2) His employers genuinely believed on reasonable grounds that he had done what was alleged against him.(3) There had been a proper investigation into the misconduct.(4) The initial disciplinary hearing was on the basis that Mr Malin was subject to a final written warning at the relevant time. The Tribunal added a comment
"If he was indeed subject to a final written warning we would consider dismissal quite justifiable."
(5) Mr Malin was not, however, in the view of the Tribunal subject to a final written warning as at 29th January 1993. He was not subject to a final written warning at that date because of the conclusion which the Tribunal reached on what it described as "an extremely difficult point of law", namely what was the starting date and end date of the final written warning contained in the letter of 29th January 1992. The Tribunal stated (paragraph 10) -
"We have come to the conclusion that the final written warning took effect on 29th January 1992 and therefore expired at midnight on 28th January 1993 ... therefore when the applicant did this act on 29th January 1993 he was not subject to a final written warning. In those circumstances the reason given by the respondents' disciplinary hearing in our view is not reasonable."
(6) Similarly, the second reason given on the appeal could not be justified "if the applicant was not subject to a final written warning."(7) As regards the other reason - that the telephone call was a serious offence warranting summary dismissal on its own - the Tribunal found that it did not come within the range which a reasonable employer could regard as gross misconduct. The dismissal was therefore unfair.(8) On the question of contributory conduct, the Tribunal regarded the telephone incident as a serious matter which contributed to Mr Malin's dismissal. It was appropriate that his compensation should be reduced by 50%. The Tribunal expressly disregarded his conduct during the previous period which had resulted in the final written warning.

Bevan Ashford's Submissions

The main point argued on the appeal was whether, as Bevan Ashford contends, the Tribunal erred in law in holding that the final written warning expired on midnight on 28th January 1993 and was not therefore in force at the time of the telephone incident on 29th January 1993. Ms O'Rourke, who appeared for Bevan Ashford, put her client's case in a number of different ways.(1) The Tribunal found the dismissal to be unfair solely by reason of its decision that the final written warning expired a matter of hours before the commission of the act of misconduct by Mr Malin.(2) The Tribunal erred in law in finding that the final written warning had expired before the misconduct. It reached that result by applying a test which had no legal basis namely, a test of "duplication of dates" and, on the ground that there should be no duplication, the Tribunal had rejected a construction which would produce duplication, namely a construction which included both 29th January 1992 and 29th January 1993.(3) The Tribunal erred in law in not considering the belief of Bevan Ashford, a belief which was reasonable and genuine, that Mr Malin was still subject to a final written warning at the time of his dismissal. That belief was relevant to the question whether Bevan Ashford had acted reasonably in dismissing Mr Malin: see S.57(3).(4) No reasonable Tribunal, properly directing itself, could have found that the final written warning took effect on 29th January 1992 when it was found as a fact that the written warning had not been handed to Mr Malin until 30th January 1992. A final written warning could not take effect so as to place Mr Malin at risk until it had been communicated to him on 30th January. Even on the basis of duplication of dates, the final written warning had not therefore expired on 29th January 1993.(5) The Tribunal erred in law in failing to consider the totality of the employee's disciplinary record over the period of his employment. That should have been considered in deciding whether the dismissal was within the range of reasonable responses of an employer.(6) On the facts found - misconduct, genuine belief on reasonable grounds, proper investigation and a final written warning - the Tribunal should have found that the dismissal was within the range of reasonable responses and therefore fair.

Conclusions on Unfair Dismissal Point

In our judgment, there was no error of law in the Tribunal's conclusion that Mr Malin was unfairly dismissed.(1) The critical question for the Tribunal was whether the reasons given for the dismissal in the letter of 3rd February 1993 had been established. The reasons given in that letter related to conduct. The conduct identified in the letter was the telephone incident of 29th January 1993 coupled with the fact that, at the time of that conduct, Mr Malin was "still subject to a final written warning". The issue before the Tribunal and on this appeal was whether that assertion, which formed part of the reason for dismissal, was factually and legally correct. As a matter of fact it was not in dispute that Mr Malin was given a final written warning in the letter of 29th January 1992. As a matter of law, the Tribunal decided that, on the true construction of the letter, Mr Malin was not "still" subject to the final written warning as it had expired. We agree with the Tribunal that it is a question of law whether the final written warning had expired, as it turns on the construction of a document namely, the letter of 29th January 1992.(2) The question of construction is not, however, divorced from the factual matrix of the letter. In construing the letter it is important to look at its nature, its purpose and the circumstances in which it was written. On this aspect of the case the Tribunal was referred, and we were referred, to statutory rules and judicial decisions on the legal effect of provisions in rules and private documents relating to the commencement date of a period specified to run "from" a specified date. In our view, none of the rules or authorities cited are determinative of this case, as they do not establish any legal proposition of general application covering this case. The materials cited illustrate the importance of determining each question of construction on its particular wording and context. If the material establishes any general proposition at all it is of the use of the expression "from" a particular date is ambiguous. In some cases, as contended for by Bevan Ashford, the use of the expression "from" in relation to a particular date excludes the day from which the period starts to run, so that time only starts to run on midnight of the specified day. As an example of this Ms O'Rourke cited Order 3, Rule 2(2) of the Rules of the Supreme Court which provides -
"Where the act is required to be done within a specified period after or from a specified date, the period begins immediately after that date."

As is made clear in Rule 2(1) of that Order that applies to -

"any period of time fixed by these Rules or by any judgment, order or direction for the doing of any act shall be reckoned in accordance with the following provisions of this Rule."
Ms O'Rourke went on to refer to the Notes in the Supreme Court Practice, Volume 1,3/2/2 for the proposition that there is a general rule of computation of time that the effect of the use of the expression "from" a date excludes that date and that that Rule applies not only to cases where an act is required to be done but also in other cases where the expression is used in contracts and private documents. She referred to the position stated in insurance cases such as South Staffordshire Tramways Co. v. Sickness & Accident Assurance (1891) 1QB 402 and Cartwright v. MacCormack [1963] 1 WLR 18 that the date of commencement of risk in an insurance contract excluded the date and time did not begin to run until midnight of that day.(3) The propositions derived by Ms O'Rourke from those Notes in the Supreme Court Practice and those cases look less impressive when one considers the cases cited to the contrary by Ms Rose for Mr Malin. In particular, she cited a bankruptcy case for a general comment by Lord Esher. In Re North Ex Parte v Hasluck (1895) 2 QB 264 at 269 . Lord Esher said -
"No general rule exists for the computation of time either under the Bankruptcy Act or any other statute, or, indeed, where time is mentioned in a contract, and the rational mode of computation is to have regard in each case to the purpose for which the computation is to be made. Notwithstanding the elaborate array of authority which have been cited to us, they seem on being sifted to contain no binding rule to the effect that time must be computed according to a hard and fast rule."
Whether the first day is to be included or excluded from the computation depends on the wording of the relevant provision, whether in a rule or in a contract, and the circumstances of the case. As A L Smith LJ said in the same case at p.272, there is no universal rule, "the reckoning of time in each case must depend on its own circumstances and subject matter." In order to reinforce this Ms Rose bravely cited a case on the rule against perpetuities English v. Cliff (1914) 2 Ch 376 , as an instance of a period to run from a particular day which was held to include that day, not exclude it.(4) Although we are not convinced that the question is concluded by the Tribunal's reference to "duplication of dates", we are satisfied that there are sound legal reasons supporting the decision of the Tribunal. We accept the submissions made by Ms Rose that the letter of 29th January 1992 should be construed strictly against Bevan Ashford who drafted the notice for the purpose of imposing on Mr Malin a penal disciplinary warning which was to remain on his personal file, rendering him liable to dismissal in the event of further misconduct. The terms in which they have done that are ambiguous as regards the commencement date of the warning. It would have been possible for Bevan Ashford to avoid the problem which has arisen by specifying in clear terms the time, day and date on which the warning was to commence and the time, day and date on which it was to expire. As they have produced a document of a penal nature which is ambiguous, it should be construed strictly against them and in favour of Mr Malin as the employee receiving the warning.(5) As for the other points made by Ms O'Rourke, we are satisfied that there was no error of law. If, as we believe, the Tribunal correctly construed the letter, then it follows that they were entitled to hold that it was not reasonable or fair to dismiss Mr Malin for the reason given in the letter of 3rd February 1993. We can see no perversity or other error of law in their decision.

Contribution

There was no error of law by the Tribunal in fixing the contribution at 50%. Bevan Ashford says that the contribution should have been greater. Mr Malin submits that there should have been no contribution. The true position is that contribution was a question of fact and degree to be decided by the Tribunal. They made a determination which was in no way perverse or vitiated by error of law. The Tribunal were entitled to come to the conclusion that Mr Malin was 50% to blame for his dismissal. We therefore dismiss the appeal and cross-appeal on this point.For all those reasons the appeal and the cross-appeal are dismissed.