MISS M WHEATLEY v THE ROYAL BRITISH LEGION [2002] UKEAT 1337_01_1610

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1337_01_1610Case No Appeal No. EAT/1337/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS M WHEATLEYAPPELLANTTHE ROYAL BRITISH LEGIONRESPONDENT
Before
His Honour Judge J BurkeDate 16 October 2002
[1]APPEARANCES For the Appellant MR CHRIS QUINN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme HIS HONOUR JUDGE J BURKE QC This is the preliminary hearing of Miss Wheatley's appeal against the Decision of the Employment Tribunal sitting at London South, chaired by Mr Tyler, and sent to the parties with Extended Reasons on 7 September 2001. By that Decision the Tribunal dismissed Miss Wheatley's claims firstly that she had been unfairly dismissed and, secondly, that her dismissal was in breach of contract. She has sought to appeal against both limbs of the Tribunal's Decision.[2]So far as the unfair dismissal conclusion was concerned, that was based on the fact that she did not have one year's qualifying employment. Mr Quinn, who has appeared today on behalf of Miss Wheatley has, helpfully, indicated that Miss Wheatley's appeal against that aspect of the Tribunal's Decision is no longer pursued and therefore that part of her appeal is dismissed.[3]So far as the breach of contract claim is concerned, it arises in this way: when Miss Wheatley was dismissed within the first year of her employment, she was dismissed without the employers going through any disciplinary process. It was before the Tribunal and is now her case that they were contractually bound to go through that disciplinary process.[4]The case was put two ways before the Tribunal. If we look at Miss Wheatley's letter of appointment, we can see that that letter incorporates, as part of the terms and conditions of her employment, the staff handbook; and the Tribunal correctly found that the terms of the handbook were incorporated. The relevant terms of the handbook, under the heading "Disciplinary Policy", provide by paragraph 1 as follows:
"Occasionally the Legion has to discipline an employee, and we are required by law to have a Disciplinary Procedure and to inform you of it. It covers all employees and will be applied uniformly."
The disciplinary procedure is then set out, and after exposition of the procedure at clause 9, the document says:
"The Disciplinary procedure may be used at the complete discretion of the Royal British Legion, and is not a contractual right of the employee during the first year of service."
[5]Before the Tribunal, Miss Wheatley contended that those two paragraphs, paragraph 1 and paragraph 9, were in conflict with each other and that paragraph 1 and not paragraph 9 should be treated as applying. In her Notice of Appeal, Miss Wheatley appears to repeat the argument that she put to the Tribunal that paragraph 1 should prevail over paragraph 9. That argument has also not been advanced by Mr Quinn; and any ground of appeal based on that argument also must fail. It is plain that the two clauses have to be read together, and one cannot be construed as, as it were, eliminating the other.[6]However, a second argument on the contract claim put forward by Miss Wheatley was that clause 9 should be viewed, on the application of the Unfair Contract Terms Act 1977, as an unreasonable term on which the employers should not be permitted to rely. The Tribunal rejected that argument, relying particularly on the decision of Mr Justice Moreland in Brigden -v- American Express Bank Ltd [2000] IRLR 94 .[7]Mr Quinn has today concentrated his argument on the Unfair Contract Terms Act point. He submits that Brigden -v American Express Bank Ltd is not on all fours with this case, because in this case, unlike that case, the contract gave the right to all employees to have the advantage of a disciplinary procedure, but then in paragraph 9 sought to exclude it, whereas as Moreland J held in Brigden , the clauses, or clause there, simply set out the employee's entitlement without including within that entitlement the claimant in that particular case.[8]With some hesitation, we have come to the conclusion that that point is arguable, and should go forward for a full hearing. We have given a judgment because that is the only point which we regard as even remotely arguable; and therefore all the other grounds of the Notice of Appeal will not go through for a full hearing; that point alone will.