Hussein v Mallenash Ltd [1996] UKEAT 53_96_1510

EAT
Hussein v Mallenash Ltd
[1996] UKEAT 53_96_1510 · 1996-10-15

JUDGE BYRT QC :

This is an appeal from the decision of a Chairman of the Industrial Tribunal sitting alone at London South on 1 December 1995 when he dismissed the Applicant's, now the Appellant's, claim to unfair dismissal and for damages for breach of contract.Before us the Appellant has appeared in person. The Respondent has not attended nor been represented. The relevant facts seem to be as follows: the Appellant was employed from 13 April 1993 as a residential home manager by the Respondent. On 19 April 1993 she was asked to sign a statement of her conditions of employment. We have seen that document and it assured her two weeks' notice after she had served in that employment for 4 weeks but for a period of less than 2 years. There was a disciplinary code attached to that document, the terms of which provided that in the case of unsatisfactory conduct or performance the Appellant would, first receive a verbal and then a written warning. If she still did not remedy her conduct, she would then have a final warning before being dismissed if she still did not mend her ways.On 15 December 1994, that is after she had been some 18 or 19 months in the Respondent's employment, Mrs Tanna, who was in a managerial position above her, gave her a written warning in the form of a letter of that date and it is relevant to read a particular passage from that letter. It is a long letter but it concludes with this warning:
"Should you fail to maintain a satisfactory performance at any time during the next six months you will be issued with a final written warning. Any further non-cooperation will result in dismissal."
On 23 March Mrs Tanna gave the Appellant notice, dismissing her. She gave her two weeks' notice and in doing so, she by-passed the stage of a final warning which had been promised in the letter to which I have just referred. That warning was followed up with a written letter the next day from Mrs Tanna in which it was confirmed she would be given the two weeks' notice, of which she would have to work for one week and she would be paid money in lieu of notice for the other. In addition to that, the Respondents made an ex gratia payment amounting to one month's salary. The learned Chairman who heard this matter made a finding to the effect that that ex gratia payment was to compensate the Appellant for the overtime she had worked. He then proceeded to consider the Appellant's claim for unfair dismissal and make a finding that the Appellant, because she had less than two years' service of employment with the Respondents, was not entitled to bring a claim under that heading and, accordingly, he dismissed it.As for the second point in contract,it arose in this way: the Appellant contended, and contends before us, that the disciplinary code which was attached to the document she signed, was expressly incorporated into her contract of employment. The Appellant submitted to the Chairman a document she claimed to be her contract, entitled "Conditions of Employment". That document, as exhibited before the Chairman, was marked R1/36. We have that document produced from the Tribunal records and it commences in the following way: it is entitled "Conditions of Employment as required by the Employment Protection (Consolidation) Act 1978 as amended". It then gives the Respondent's name, followed by the employee's name, Mrs Hussein and then it says this:
"This statement, sets out the main particulars of the terms and conditions which, in conjunction with the Grievance and Disciplinary Procedure and any working arrangements, form the Contract of Employment between the Company and yourself."
The signed contract has annexed to it the disciplinary rules and procedures and I think it is relevant to refer to a passage which appears under the "Disciplinary Appeal Procedure" heading. It reads as follows:
"The disciplinary rules and procedures which form part of the contract of employment incorporate the right to lodge an appeal in respect of any disciplinary action taken against you. "
Whilst it is not relevant to this case to deal with the appeal procedure, there is a clear reference in that code, annexed to the signed contract of employment, to the fact that the code, forms part of the contract of employment.The very experienced Chairman, who dealt with this matter on his own, saw all this documentation I have referred to. He quoted from a passage in the document, entitled "Conditions of Employment" which says this:
"The ACAS Code of Practice recommends that the Company should ensure that fair and effective arrangements exist for dealing with disciplinary matters and that staff are made aware of these arrangements. The Company's disciplinary procedures have been devised to meet this recommendation and to ensure fair treatment to each employee. A copy is available for inspection in the office during normal office hours. Please make sure you read it."
In dealing with that particular passage the learned Chairman said as follows in paragraph 9 of the reasons:
"It appears that the Respondents were in breach of their disciplinary rules and procedures in moving from a written warning to dismissal, bypassing the final warning stage. On this basis, and for these purposes the Respondents did not seek to call evidence to justify this action, the question for the Tribunal was whether the disciplinary rules and procedures were part of the contract of employment. Strictly speaking, it appears that the contract of employment itself is implied and/or oral, the document signed by Mrs Hussein and the Respondents merely being the conditions of employment required to be provided in accordance with the 1978 Act. The provision as to notice is certainly contractual. However, the reference to the disciplinary rules is just that, a reference, and had not been incorporated into the contract of employment."
As a result of those conclusions, the learned Chairman dismissed the claim for breach of contract.The matter came before the Employment Appeal Tribunal in the first instance at a preliminary hearing. Leave was given for this matter to proceed to a full hearing. Having regard to the passages I have read in the course of relating the facts in this case, from the beginning of the document "Conditions of Employment", signed by the Appellant and the Respondent, and from the disciplinary appeal procedure, it is our firm view that the Chairman's findings set out in paragraph 9 of the reasons are unsustainable. We are satisfied that "Conditions of Employment" were the Appellant's contract of employment, and that the disciplinary rules of procedure attached formed part of that contract, having been expressly incorporated by reference to what is set out in these Conditions of Employment and in the Code itself.What is the effect of our finding? The Respondent's Mrs Tanna had by-passed the Appellant's entitlement to a final warning and dismissed her. That is a finding of the learned Chairman. We find that to be a breach of the Appellant's contract of employment and, incidentally, of the undertaking given by Mrs Tanna in her letter of 15 December 1994. Accordingly, we must allow this appeal, having found that the learned Chairman had erred on a point of law relating to what constituted this Appellant's contract of employment. We have come to the conclusion that this matter should now be remitted to a full reconstituted Tribunal to assess the damages. It is for that Tribunal to decide how, in fact, they proceed to make that assessment having heard argument. They may come to the conclusion that their task is to assess the value of the Appellant's lost chance to survive in her employment till the 13 April 1995, the expiry date of her two years of continuous employment with the Respondents, and also of recovering under a potential claim for unfair dismissal. In respect of such an evaluation, there is plenty of analogous common law authority.