Appeal No.	 EAT/979/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 January 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR P R A JACQUES CBE
MR P A L PARKER CBE

MS T KNIGHT	APPELLANT

MISS S I HOLDSWORTH	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE 

Revised

	APPEARANCES

For the Appellant	MR D R LYDDON
(Representative)	

JUDGE PETER CLARK
1	This is an appeal by Ms Knight, the Respondent before the Exeter Employment Tribunal sitting on 8 June 2000,  against that Tribunal’s decision with extended reasons promulgated on 20 June, upholding the Applicant, Miss Holdsworth’s claim for damages for breach of contract and awarding the damages in the sum of £1,096.74.

2	The Applicant commenced employment in the Respondent’s business as a beauty therapist on 1 September 1999 under the terms of a written contract of employment, which set out the Respondent’s disciplinary procedure, providing for two verbal warnings and one final written warning before dismissal for a reason other than gross misconduct, serious habitual misconduct, negligence, or not attending to her duties.  Her appointment was subject to a 6 month probationary period. 

3	On 1 December 1999 the Respondent held a review meeting with the Applicant at which she administered what the Tribunal regarded as being tantamount to a first verbal warning.  

4	On 15 January 2000 the Respondent summarily terminated the Applicant’s employment with one week’s pay in lieu of notice.

5	The Applicant argued that since under the contract she was required to give two months’ notice of termination, she ought to receive similar notice from the Respondent.  The Tribunal rejected that contention and decided that she was entitled to one week’s notice.

6	However, they went on to find that in the particular circumstances of the case the Applicant was contractually entitled to the warning procedure being applied.  They treated the 15 January 2000 as the date on which a second verbal warning would have been given in accordance with the procedure; followed by a final written warning one month thereafter, and dismissal one month after that.  Accordingly they awarded the Applicant damages for breach of contract representing two months’ net pay less state benefits received over that period.  

7	In this appeal the Respondent, through her representative, Mr Lyddon, takes two points.  It is convenient to take them in reverse order.  

8	Mr Lyddon’s principal submission is that there was no evidence to support the Tribunal’s finding, following a second verbal warning on 15 January 2000, that a final written warning would have followed one month later, and dismissal one month after that final warning. He argues that the final warning would have followed the next day and dismissal one week later.  

9	We accept that there is no direct evidence to support the Tribunal’s findings, just as there is rarely any direct evidence to assist in the hypothetical task of assessing when a successful applicant, still unemployed at the date of hearing, will in future secure alternative employment.  However, it is for the Tribunal to determine what is a reasonable period of time in which the employer could properly exhaust the contractual disciplinary procedure.  Gunton -v- Richmond [1980] ICR 755, see per Brightman LJ 775B.  

10	We bear in mind that the purpose of the warning procedure is to give the employee an opportunity to improve.  We also remind ourselves that we can only interfere in the finding of the Tribunal on a question such as this where it can properly be said that the relevant conclusion is perverse.  We are unable to find that such a proposition of law is even arguable on the facts of this case.  

11	Mr Lyddon’s second point melted away during argument.  It was said that the Tribunal were wrong not to give credit against the two month period of loss the week’s pay in lieu of notice which the Applicant actually received.  The short answer is that on the Tribunal’s analysis at the end of the notional two month disciplinary period dismissal would have taken place, with notice or pay in lieu.  Consequently no credit for that payment falls to be given.  

12	In these circumstances we have concluded that this appeal raises no arguable point of law.  Accordingly it must be dismissed at this stage.