Smith v. American Life Insurance Company [2000] UKEAT 280_00_2106 (21 June 2000)

JUDGMENT Revised © Copyright 2000 APPEARANCES For the Appellant MR J N GALBRAITH-MARTIN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE ALTMAN This is an appeal from a decision from a decision of the Employment Tribunal sitting at Bristol on 19 November 1999. It comes before us by way of preliminary hearing to determine if there is an arguable point of law to justify consideration in full by the Employment Appeal Tribunal. The hearing on 19 November was for the purpose of assessing compensation. Earlier, on 22 September 1999, the Employment Tribunal had found that the Respondents were in breach of the terms of the contract of employment. One of the breaches was the absence of notice which they had dealt with by an award of one week's pay in the later hearing. However in their earlier decision in paragraph 17 the Employment Tribunal had made a finding that "having suspended the Applicant and started a disciplinary process (they) have waived the exclusion of the disciplinary procedure from the terms of the contract and are accordingly bound by it" On the assumption that that was a correct and binding finding in the first Tribunal, the failure to follow that procedure, it is argued, constituted in itself a breach of contract which sounds in damages. Reference has been made to the following cases Naverack –v- Woods, Gunton –v- London Borough of Richmond (1980) IRLR 321, Boyo –v- Lambeth Borough Council (1995) IRLR 50 and the case of Raspin (1999) IRLR 9 . Accordingly it does seem to us that there is an arguable point of law that having found that there was a breach of contract in there being a failure to follow a disciplinary procedure. There may be an element of damages to be awarded in respect of any time that would have been required to pursue that procedure that was not expended in this particular case. Whether or not that would give rise to a finding of fact that additional time would have been expended and if so for how long of course is another matter entirely. However we are satisfied that that does give rise to an arguable point of law. This matter will be listed for full hearing in category C for ½ day, skeleton arguments to be furnished14 days before the date listed for the hearing. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII