MR D J PURVIS v LUMINAR LEISURE LTD T/A CHICAGO ROCK CAFE [2000] UKEAT 1332_99_2711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 1332_99_2711Case No Appeal No. EAT/1332/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D J PURVISAPPELLANTLUMINAR LEISURE LTD T/A CHICAGO ROCK CAFERESPONDENT
Before
His Honour Judge D M LevyDate 27 November 2000
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondent MISS LYDIA SEYMOUR (of Counsel) Instructed by: Messrs Fennemores Solicitors 200 Silbury Boulevard Central Milton Keynes MK9 ILL JUDGE D M LEVY QC Mr Dominic James Purvis, ("the Appellant") sought employment with Luminar Leisure Ltd trading as Chicago Rock Café ("the Company") in a document at pages 18 - 28 of our bundle. That document is a form which was handed to him to fill in before the Appellant's employment could commence. Paragraph 28 shows the signature of the Appellant dated 1 March 1999.[2]Within the documents which he completed, there is a heading:
"REFEREE (Contact Name and Full Postal Address and Telephone No.)" followed by this note:- "
These should be your two most recent employers, otherwise please state that they are personal references, the occupation of the referee and the nature of your relationship to them." Mr Warren, the Proprietor of the Kingsmead Centre, was named as one employer. A Mr M K Padden was given as a personal reference, with a note "Pub Manager and Former Employer". Later in the document, under the heading "Work to date", the name "SFI Group" is printed as a body where the Appellant was a licensed trade relief manager. There is a note on our documents, which the Appellant accepted as accurate, that he indicated at his interview that that employer did not want to release him and had asked him to stay.[3]In due course the company took up the references, but not getting the references from the two referees whose names had been given, sought a reference from SFI. The answer from SFI was unsatisfactory. The company had found that there was a question of a bankruptcy of the Appellant, which caused concern because if he was to work as a licensee, it is likely he would have to satisfy the justices of his suitability to be a licensed manager.[4]By the time the SFI reference was received by the company, the Appellant had commenced his employment on a three month provisional basis on terms shown in a contract of employment which forms part of the bundle. On 1 April 1999, having regard to the knowledge of the Appellant by then gained, the company decided to dismiss him. A Summary Dismissal Notice of that date reads in part:- "Because of the serious nature of the case found against you the Company will not tolerate your continued presence at work. Accordingly, I have decided to dismiss you from the Company's employment with immediate effect. The circumstances of the case found against you and the reason for your dismissal are as follows: Failure under Company Policy to supply satisfactory reference's as laid down in appointment letter of the 16/2/99" Signatures on that document include that of the Appellant.[5]On 12 April the Appellant wrote to the company a letter which we find at page 45 of our rather disorganised bundle. The letter reads as follows:- "Chicago Rock Unit - Taunton - 330 I was appointed by Alistair Burford to be manager of this unit as from 1 st March 1999 following a lengthy interview with him in Luton. I took over this unit on 9 th March and have been informed by your management staff that my operations have been entirely acceptable and had already led to a modest increase in turnover, and a reduction in operation costs, which I had been asked to achieve. I understand that I was appointed, as I had many years' experience of the licensed and entertainment trade in Taunton, and also a good track record. I supplied your company with the names of two referees and Melanie Ginger wrote to them on 10 th March. On 11 th March Mr Allen spoke to Miss Ginger by telephone and informed her that my original referee in that firm was away, and that he would provide the reference which he was entirely happy with. She took the opportunity to enquire as to the likely nature of the reference and was informed that I had been an excellent employee, who had been highly regarded. On 22 nd March Mr Allen again spoke to Miss Ginger and informed her that he would Fax the reference to her, which he did, and also sent the hard copy by post. I am also informed by my other referee Mr Padden, that he sent his reference to Miss Ginger before the 23 rd March. I received a letter dated 1 st April stating that my employment was terminated following a visit to Taunton by Derek Spence. The reason given was that you had received no references from my referees, and had obtained a reference from a previous employer of 3 months only, which stated that, Stocks/Accounts were not always closed to their satisfaction. This came from Surrey Free Inns and is completely untrue, which can be shown to you in independent documentation and written evidence. I can understand that this is an unacceptable reference in your eyes, but I believe that I should be given a proper opportunity to provide you with a full explanation to satisfy the requirements of your Company. When I met Steve Dennis, he felt unable to look at these documents, and this is why I am writing to you. It is a serious matter to me, as well as you, that I should be dismissed from a job due to untrue statements made to you, and that you should rely on such unsubstantiated statements. I understand from your letter that SFI would not provide any explanation for their statement, which clearly would call its veracity into question. I very much enjoyed running your unit in Taunton, and believe that my continued operation of this unit would be to the benefit of your Company. That is why I am writing to request that I may have the opportunity of coming to see you to try and sort out this problem and resume my employment"[6]The company replied to that letter, with a letter which is found in at least two places, in the papers provided for us, at page 68 and page 77. The letter is dated 19 April 1999 and reads:- "I acknowledge receipt of your letter of 12 th April. This company has established policies regarding confirmation of appointments and states these in the offer letters. You will have signed acceptance of this prior to your start date. If we are in possession of a reference which fails to satisfy the company we reserve the right to withdraw the offer. This we have done in this case. No potential employee has the right to determine from whom we should seek references or to demand that details provided by a bone fide company be the subject of a follow-up investigation. I regret you have on-going disputes with former employer(s). This cannot be allowed to be a problem for this company. In the normal course of business, our retained Personnel Lawyers have examined the legality of our position in this case and confirm our practice is wise and breaches no part of employment law."[7]The letter of employment is dated 16 February 1999 and at page 69 of our bundle, the opening paragraph reads:- "Following your recent interview I am pleased to offer you the position of General Manager at Chicago Rock Café, Taunton. This offer is subject to references being obtained that satisfy the company " (our underlining) "and a document which demonstrates a right to work in the UK being produced. It is the final decision of the Company to determine whether such references and documentation meet our requirements. The offer may be conditional upon you obtaining a liquor licence."[8]There was a meeting between the Appellant and a representative of the company at a motorway service station at the end of which the company refused to change its position, so the Appellant commenced proceedings in an Employment Tribunal. His application is dated 24 June 1999 and the company's Notice of Appearance is dated 15 July 1999.[9]At the hearing before the Employment Tribunal which took place on 20 August 1999, the Appellant was represented by his father, and Ms Seymour of Counsel, appeared for the Respondent; she has appeared again today. Today the Appellant has represented himself. In his well articulated submissions, he has said everything which could possibly be said which would persuade any Tribunal to allow the appeal.[10]At the hearing before the Employment Tribunal, after the evidence of Mr Purvis had been taken, a submission was made that there was no case to answer by the Respondent. That submission was upheld by the Tribunal. The claim was dismissed. In paragraph 8 of the extended reasons promulgated on 23 September 1999 the Tribunal said:
"Accordingly, at the conclusion of the applicant's evidence and cross-examination, the Tribunal accepted a submission of no case to answer by the respondent. In the unanimous opinion of the Tribunal the applicant was properly dismissed by the respondent in accordance with the terms of his contract of employment."
[11]From that decision the Appellant appealed, his appeal was heard on the ex-parte preliminary procedure by a Tribunal headed by Judge Wilson on 11 February 2000. Having heard the Appellant, the Tribunal ordered that the appeal be allowed to proceed to a full hearing upon the following three questions:(1) Whether it was a breach of contract to seek a reference from a source other than the sources given by the Applicant to the Respondent and before answers had been received from those references given by the Applicant.(2) Whether there was a breach of contract to act upon adverse information which proved to be erroneous from an unauthorised referee, without giving the Applicant an opportunity to deal with that information.(3) Whether or not the grievance procedure was correctly followed by the Respondent Company, and if not whether the fact should have affected the view taken by the Employment Tribunal.[12]Those grounds must have followed the argument which had been submitted to the Tribunal below, where obviously, much attention was paid to the grievance procedure which had been produced to them. The Appellant seeks here that the questions should all be answered in his favour. For the company, Ms Seymour has submitted that none of them, however sympathetic we may feel towards the Appellant, can be so answered.[13]As to the first question, Ms Seymour draws our attention to the letter of offer to which we have referred and she submits that there was no express term preventing the Company from seeking references from whoever it thought fit, and that in order to answer question (1) in the Appellant's favour, it would be necessary to apply a term in his contract which said that the Respondent would not seek any references from people other than those nominated by the Appellant. It is clear to us that a wide implied term such as that sought by the Appellant is not one which could properly be made. Indeed, the Employment Tribunal obviously considered whether a term should be implied of that sort, and came to the conclusion that it should not. Ms Seymour submitted that even if we came to a different conclusion, it would not be open to us to interfere with it. In our judgment, both of her submissions are right. In the circumstances, even on the premiss that the factual basis of the questions is right, in our judgment, there was no breach of contract by the company.[14]The second question which is raised is whether it was a breach of contract to act upon adverse information which proved to be erroneous from an unauthorised referee, without giving the Applicant an opportunity to deal with that information. It may well be that a different employer, faced with the information from a former employer, or a present employer, it matters not which, of the Appellant, might have talked to him about it, rather than taking the action which this employer did, but in our judgment, it was not a breach of contract within the four corners of the document which we have read to do so. Just as with question (1) implied terms arise which could not properly have arisen in this case.[15]As to question (3), whether or not the grievance procedure was followed by the Respondent Company, the Respondent Company's grievance procedure clearly was not drawn to deal with a situation such as this.[16]It is clear that the company changed its ground from time to time, but essentially, the Appellant was dismissed because the company was not satisfied with references, whether factually correct, or received or not, and in fact his employment ceased on 1 April 1999 and he wrote a letter of grievance on 3 April 1999, which is at page 38 of our bundle which precedes that of 12 April which we have set out.[17]Ms Seymour submits that at the point when he instituted the grievance, the Appellant had no contractual relationship with the Respondent, and hence no right to a grievance procedure. She submits that the grievance procedure of the company, which we have considered makes no sense in relation to an ex-employee. We think that that submission is right. However Ms Seymour submits in the alternative that in paragraph 7 of the extended reasons, the Tribunal found that at the service station meeting:
"Given the circumstances of the applicant and the director respectively at the time it was clearly the most convenient place for the meeting. In our view, that meeting properly satisfied the underlying principles and objectives which a grievance procedure seeks to address. It did provide the applicant with an opportunity to raise his grievance and have it addressed but the director did not consider there were any grounds raised for changing the decision to dismiss. In our view, he did so quite properly and we dismiss any suggestion that there was a breach of contract on the part of the respondent by its failure to follow its grievance procedure."
[18]We think that that was a view that the Employment Tribunal, who heard the evidence of the Appellant was entitled to reach in the circumstances of the case.[19]In our judgment, there has been no error of law below, and sympathise though we may with the Appellant, we cannot see grounds for allowing this appeal. While thanking him for his careful, considered and attractive submissions we dismiss this appeal.