MR ANDREW PHILIP SMITH v AMERICAN LIFE INSURANCE COMPANY [2001] UKEAT 0280_00_1306

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0280_00_1306Case No Appeal No. EAT/0280/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR ANDREW PHILIP SMITHAPPELLANTAMERICAN LIFE INSURANCE COMPANYRESPONDENT
Before
His Honour Judge J Altman Mr R N Straker Mr G H WrightDate 13 June 2001
[1]APPEARANCES For the Appellant MR A SMITH (The Appellant in Person) For the Respondent MR C BAMFORD (of Counsel) Messrs Ormerod Heap & Marshall Solicitors Green Dragon House 64-70 High Street Croydon CRO 9XN HIS HONOUR JUDGE J ALTMAN This is an appeal from the decision of the Employment Tribunal sitting at Bristol on 19 November 1999. That was a hearing convened to assess damages to be paid following a finding of breach of contract in a decision of the same Tribunal on 22 September 1999. The Employment Tribunal found that damages were limited to the period of notice entitlement, in other words, the breach was limited to the failure to give notice of one week and was limited to one week's pay. The Appellant says that he was dismissed in the middle of a contractually binding disciplinary procedure and therefore the failure to abide by that procedure meant that by reason of that failure to follow the procedure his employment came to an end at a point in time before it should have done.[2]The sole issue for us to consider, it seems to us, is this question. Did the Employment Tribunal find properly that the dismissal of the Appellant was part and parcel of the contractually binding disciplinary procedure that was underway at the time? Or was it, as Mr Bamford for the Respondents has argued valiantly, that they were two wholly separate matters and the fact that dismissal took place during a pending disciplinary procedure was simply fortuitous?[3]The background to the remedies decision was the hearing on liability and the finding of a breach of contract. The Appellant had made a number of complaints including sex discrimination and victimisation which had been dismissed. The finding of breach of contract was sustained. The history of this matter can be dealt with chronologically and the chronology is important. On 22 April 1999 the Appellant as an employee of the Respondent interviewed a female applicant for the post of salesperson. She took up her employment on 29 April. On 4 May she complained that the Appellant had sexually harassed her. On 14 May there was a formal disciplinary investigation. In their decision in paragraph 4 the Employment Tribunal found that that meeting was constituted as a formal disciplinary hearing but later on in that paragraph they found that it was clear from the notes of the meeting that it was an investigatory meeting rather than a disciplinary hearing. Accordingly, it seems to us, whilst the Tribunal referred to it as a formal disciplinary hearing, what they meant was that it was a hearing as part of a formal disciplinary procedure. At that hearing the Appellant denied the incident but he did admit to an incident that took place with the same woman on 22 April when he had first interviewed her. On 24 May the Respondents then conducted a disciplinary hearing, not with the Appellant, but with the complainant woman. The purpose of that was, in the words of the Tribunal to:
"ascertain precisely what transpired and seek to verify the truth of the assertions made."
The next day the Respondents wrote to the Appellant terminating his employment during the course of his probationary period on the ground that his conduct had not been appropriate without specifically referring to the disciplinary process that was in train. It was about a week later that the Appellant then received the result of the investigations that had followed the initial investigatory hearing. The Employment Tribunal made the following finding:
"…. the result of that investigation was that the evidence was inconclusive and the claims were not proved. Notwithstanding that conclusion, the [Appellant] was dismissed. He requested an appeal: but it was not carried out."
It is also important to mention that on 10 May, in immediate reaction to the complaint of sexual harassment the Appellant had been dismissed, but when he queried it he was reinstated and suspended which was part of the disciplinary process.[4]The Employment Tribunal, having dealt with the other matters of harassment and victimisation, went on in paragraphs 16, 17, and 18 to deal with the breach of contract. They made the following findings:
"16 So far as breach of contract is concerned we direct ourselves to consider the terms of the contract, the terms of the attendant disciplinary procedure and the steps taken by the Respondents in respect of those documents. 17 The disciplinary procedure is expressed not to apply to individuals during a probationary period. The disciplinary procedure contains authority for the Respondents to suspend an employee on full pay pending investigation. The terms of the contract, standing on their own, do not authorise the Respondents to suspend pending an investigation. We find, therefore, that the Respondents, having suspended the applicant and started a disciplinary process, have waived the exclusion of the disciplinary procedure from the terms of the contract and are, accordingly, bound by it. The Respondents cannot pick and choose which part of the disciplinary procedure they comply with: having waived its exclusion from the contract, it is bound by the entirety of it. 18 We find that step 1 of the procedure (investigation) has been carried out: but that none of the subsequent steps were carried out prior to dismissal."
We have had an opportunity of being shown the disciplinary procedure and the two steps that were not carried out prior to dismissal if the procedure had been followed were, first, what is described as 'Step 5 Final Review Dismissal' which is a final review with the employee that will in the event of the facts being proved result in dismissal, and secondly, an appeal to the general manager in writing.[5]Mr Smith says that he was dismissed during the course of a disciplinary procedure in which his own conduct on 22 April had been part of the investigation and that following an interview with the woman concerned he was dismissed. Mr Bamford says, in effect, "no, that is not what happened; what happened was that, having admitted inappropriate behaviour on 22 April, it so happens by chance in the course of a disciplinary procedure that had nothing to do with it, that the Respondents decided to dismiss as a completely separate matter, and the disciplinary procedure related solely to the complaint relating to 4 May". Mr Bamford concedes, in his words, that the 22 April incident was part and parcel of the fabric of the disciplinary procedure but, he says, that as it was not part of the complaint that initiated that procedure the contractual term requiring a disciplinary procedure before dismissal did not apply to it and the employers were relieved from it.[6]We look to the decision itself and find that the facts found by the Tribunal simply do not support that proposition. Paragraph 6 to which we have referred demonstrated the finding that there was contradictory conduct on the part of the Respondents. They had found an inconclusive investigation. Claims of harassment were not proved. They also found that the Appellant was dismissed. They use the words "notwithstanding that conclusion" clearly indicating a finding that the two were bound up with each other and that the Respondents had acted inconsistently. Therefore, the two were connected and the argument of Mr Bamford that they were not must be unsustainable.[7]In paragraph 11 of their decision, when the Tribunal deal with the approach of the Respondents to this matter, the Tribunal decided that the incident of 22 April being allowed to occur was wholly inappropriate and unacceptable to the Respondents and that that was the reason for the dismissal. However, it is wholly artificial to suggest that it is purely coincidental that the two dismissals took place at the same time. The investigation covered the need of the Respondents to investigate incidents of sexual behaviour between the Appellant and the woman concerned and the fact that the dismissal resulted from matters that arose in that procedure that were not part of the original complaint does nothing to separate it out from that particular procedure. All sorts of things may arise in a disciplinary hearing, and an investigatory hearing, even by way of admission of by discussion in some way that may not be caused by the initial complaint, and that may still form part of the disciplinary process.[8]The decision of the Employment Tribunal was that the disciplinary procedure was a contractual term of the contract of employment and therefore it must follow that there was a breach when dismissal during the course of that procedure followed without its being carried to its conclusion. At the very most it may be said that there is a conflict in the contract between the right to the length of time it takes for a disciplinary procedure on the one hand and the right to only one week's notice on the other. Even if that is the case the only way to construe such a conflict so as to give efficiency to the contract or to construe it, as one should, in favour of the party (the Appellant) who was not responsible for the wording. This construction would give precedence to the length of time needed for the disciplinary procedure and subordinate a week's notice to that.[9]We therefore find that in restricting the breach which they found to the failure to give one week's notice the Employment Tribunal fell into an error of law in construing the consequences of their own decision on the facts. The other term for which damages sound is the term which entitled the Appellant to the full length of a procedure. It took a week for the investigatory proceedings to be further concluded after the date of dismissal, and the combined experience of the members of this Tribunal is that beyond that the convening of an actual disciplinary interview followed by dismissal and followed by an appeal which may have been unsuccessful would probably have taken about three weeks. That means that the date of dismissal through breach of contract in failing to follow the disciplinary procedure was brought forward by about four weeks. We have gone into that sort of detail and to some extent have embarked on a fact finding procedure on the information before us, because it would be out of all proportion to this case for any more public or private money to be expended on further hearing for the assessment of compensation. We hope that the parties will be able to agree the weekly amount involved. We will give them a moment or so do so, so that the matter can be concluded once and for all.[10]We decided on the information before us to substitute for the Tribunal our own findings as to the amount of compensation to be paid over and above that already awarded because the information is plain to see. The Appellant's gross pay was £1,500 per month. Normally he would receive only that which he had lost and that would be net pay but as we understand, he was not employed again for the rest of that year. it seems to us more likely that he would not, in that event, have had to pay tax on that money. Accordingly we award the full amount of £1,500. He also had a contractual entitlement to a car and we consider that a fair amount for loss of use of the car for that period of time for his own personal use only is £250, which is the sum he suggested and there was no argument to the contrary advanced to us. There was a discretionary bonus, but as it was discretionary and the Appellant was suspended at the time without any opportunity to earn any money, that does not seem to us to be a matter that forms part of the calculation of damages. Accordingly, we order that there is an additional amount of compensation to be paid in the sum of £1,750.