MAIDSTONE BOROUGH COUNCIL v MR MICHAEL TEBBUTT [2001] UKEAT 768_00_1309

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 768_00_1309Case No Appeal No. EAT/768/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MAIDSTONE BOROUGH COUNCILAPPELLANTMR MICHAEL TEBBUTTRESPONDENT
Before
MISS RECORDER SLADE QCMRS J M MATTHIASMR A D TUFFIN CBEDate 13 September 2001
[1]APPEARANCES For the Appellant Miss M Jones Principal Solicitor Maidstone Borough Council London House 5/11 London Road Kent ME16 8HR For the Respondent The Respondent in person MISS RECORDER SLADE QC The Tribunal, constituted by a Chairman sitting alone, determined that the Applicant, Mr Tebbutt's claim for breach of contract was well founded and it awarded him damages in the sum of £901.37.[2]The Appellant Council asserts that the Employment Tribunal erred in its construction of Mr Tebbutt's contract of employment in that it held that during his six months probationary period, the Council were not entitled to terminate his contract by notice.[3]The facts may be briefly stated as follows. By a letter dated 26 April 1999, Mr Tebbutt was offered the post of Cleansing Monitoring Officer with the Council. That offer was made subject to certain conditions, including:
"(d) successfully serving a probationary period of six months, during which time termination of employment by one month's notice can be given on either side"
Mr Tebbutt was due to start work and take up his post on 7 June 1999. On that date, the Council signed a Statement of Particulars of Employment relating to Mr Tebbutt. We will refer to the material passages in that document.[4]By paragraph 1 entitled "Conditions of Service" the Council stated:
"During your employment with the Council your terms and conditions of employment (including certain provisions relating to your working conditions) are covered by existing collective agreements negotiated by the National Joint Council for A.P.T & C Services and supplemented locally."
Then there is reference to where those NJC terms may be found. "Periodically, variations in your terms and conditions of employment will result from negotiation and agreement and these will be notified to you or otherwise incorporated in the National Conditions of Service or the Council's Staff Instructions." It is submitted and was accepted by the Tribunal that the Council's staff instructions are in fact the Council's staff handbook. There is reference to a document entitled "The Council's Staff Handbook" elsewhere in the Statement of Written Particulars, for example, in paragraph 12.[5]Paragraph 8 of the Statement of Written Particulars provides, under a heading "Periods of Notice":
"You may terminate your appointment by giving a minimum of 1 calendar months notice in writing. The Council may terminate your employment by giving a minimum of 4 weeks notice in writing or one of the following, whichever is the longer."
And there then follows the statutory minimum periods of notice.[6]Paragraph 16 of the Statement of Written Particulars provides:
"Probationary Period: "
Your post is subject to a probationary period of six months and at the end of this period a review will be carried out." We turn now to the provision in the Council's handbook, which was referred to before the Employment Tribunal, paragraph 5 of the extract of the handbook provided to us, and which Mr Tebbutt says was not provided to him on his engagement, but was sent with his notice of termination. This provides as follows:
"5 Termination of Probationary Period"
This applies to normal and extended probationary periods. The minimum period of probation is three months and, unless formally extended, the maximum is six months . No contractual notice periods apply during probationary periods, any notice being deemed to be issued within the requirement to serve a probationary period."[7]By a letter dated 9 July 1999, the Council terminated Mr Tebbutt's employment. In paragraph 2 of that letter, a representative of the Cleansing Service Department wrote as follows:
"Your last day of service with the Borough Council will be 9 th July 1999. However, under the Council's probationary procedure you are entitled to payment for the first three months of service and I shall arrange for payment of service for the period 10 th July to 6 th September 1999 inclusive to be paid to you as pay in lieu of notice."
The Employment Tribunal stated in paragraphs 6 and 7 of its Decision:
"6. The Handbook states no contractual notice periods apply during the probationary period. This employee was given a contractual notice period of one month, by his letter of appointment. The written terms and particulars state "
Your post is subject to a probationary period of six months". The Applicant was given the maximum of six months probation and, in accordance with the letter of appointment, the notice period given by the letter of appointment, one month, is not to apply. 7. I find, therefore, that the Applicant's claim is well-founded. It may not have been the Respondent's intention to give the Applicant a six month contract of employment. The result of construing the contract as a whole has led me to this result. In any event, any ambiguity, and there is certainly an abundance of ambiguity here, must be construed against the person who created that ambiguity. In this case, I have construed it against the employer and in favour of the employee."[8]In our judgment, the documents which are said to constitute the contract of employment in this case create an undesirable state of uncertainty. However, it is plain from the letter of offer of 26 April 1999 that the Applicant before the Tribunal, Mr Tebbutt, was being offered employment subject to serving a probationary period of six months, during which time his employment could be terminated on one month's notice. The Statement of Written Particulars, on its face, contains a notice provision entitling the Council to terminate employment on four weeks notice, see paragraph 8, and also contains a provision for a probationary period of six months. There is no inconsistency between a notice period provision, and a probationary period provision, indeed, it is common to have the two co-existing. On the face of this document alone, on its proper construction, in our judgment, the probationary period of six months is subject to a right to termination on notice of four weeks.[9]Is the position altered by the incorporation of the Council's Handbook, and in particular, paragraph 5? Paragraph 5 contains a sentence which Ms Jones, on behalf of the Council, has characterised as unhappily phrased. In our view, that is a kind description of the sentence; it is an extremely muddled sentence. It provides:
"No contractual notice periods apply during probationary periods, any notice being deemed to be issued within the requirement to serve a probationary period."
[10]For his part, Mr Tebbutt contends that the Tribunal in its reasoning was correct and that the Decision of the Tribunal should be upheld for the reasons expressed in its Decision. With regret we have to say that the Tribunal's Decision itself contains a muddled sentence in a material part, namely in paragraph 6 in which the Chairman stated that:
"The Applicant was given the maximum of six months probation and, in accordance with the letter of appointment, the notice period given by the letter of appointment, one month, is not to apply"
The letter of appointment plainly refers to the ability to terminate on notice during the probationary period. It may be that in making the observation we have referred to, the learned Chairman had intended to refer to the Council's Handbook.[11]On the provisions which we have outlined, in our view, there appears to be an apparent conflict between the terms as to notice during the probationary period contained in the Statement of Particulars, and the provision in paragraph 5 of the Handbook. We therefore look to the surrounding evidence to seek to resolve that conflict. In our judgment, the terms of the letter of offer are very material in resolving any apparent conflict. That letter of offer made it plain beyond doubt that the terms of offer were that there should be a probationary period of six months, during which time termination of employment by one month's notice can be given, on either side.[12]We accordingly resolve any apparent doubt or conflict between the Statement of Particulars and the Handbook in favour of the Statement of Particulars. In our judgment, the Tribunal Chairman erred in failing to construe this contract in accordance with the Statement of Particulars, namely that the employment could be terminated during the probationary period, upon giving four weeks notice.[13]Accordingly, we allow this appeal and set aside the Decision of the Employment Tribunal. We, all three of us, are somewhat concerned about the very muddled state of the contractual documentation in this case, and we are confident that the Council will take steps to rectify that. Madam, can I just say that those steps were put in hand before this hearing. Thank you.