IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE E.A.T
(MR JUSTICE ELIAS)
B e f o r e :
LADY JUSTICE ARDEN
MR JUSTICE GAGE
|WEST COAST TRAINS LIMITED||Respondent/Respondent|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MISS M TETHER (instructed by Eversheds) appeared on behalf of the Respondent
Crown Copyright ©
"On 7th November 2001 the applicant received a letter from the respondent confirming that he was dismissed with effect from 6th November 2001. He was informed that he had a right to appeal against this decision, which should be put in writing within seven days of the date of his hearing stating the grounds of his appeal."
It went on in paragraph 18 to allege:
"By letter dated 8th November 2001 the applicant stated that he wished to appeal against the decision of the hearing though since the letter of termination had failed to give any reasons he was unable to base his appeal on any grounds. He asked to be sent a copy of Clause 9 of the respondent's Disciplinary Procedures, the grounds upon which the decision to dismiss was based.
(19) To date the applicant is yet to receive a copy of Clause 9 of the respondent's Disciplinary Procedures."
There is no reference in the document to the outcome of the appeal. That originating application was dated 4th February 2002. It was received by the Employment Tribunal on 5th February 2002.
"Dear Mr Roberts,
With reference to the disciplinary action taken against you on 6th November 2001 I am writing to confirm the outcome of the appeal hearing held on 6th February 2002 that the decision is to reduce the punishment of dismissal to one of reduction in grade to Customer Service Assistant on Board at Euston.
The period between 06.11.01 and 06.02.02 will be treated as suspension without pay.
The Final Warning will state that 'If you are involved in any future instances resulting in disciplinary action then it will result in your dismissal'.
I note that you have requested leave until Monday 11th February but please contact the Service Centre on Friday to sort out your roster."
The letter was signed on behalf of the Board Service Manager.
"With reference to our conversation of Thursday 7th February 2002 [it was a telephone conversation] following the disciplinary hearing held on 6th February 2002. I stated in that conversation that I would need some time to discuss the new position with my wife. In addition, I also stated the possibility of returning to work once I received my new employee contract. However, I am still awaiting the disciplinary meeting notes from 6th February 2002. When I receive all the relevant information, I will give you my decision about my future employment.
I am sure that you can appreciate that this is a stressful time, and in view of this my Doctor has indicated that I need some time to recuperate. I will inform you of any further changes to my state of health."
Another letter was sent to Mr Roberts from the Employee Relations Officer, Mr Austin, misdated 1st February -- the correct date is 13th February 2002 -- saying:
"Further to your telephone call on Thursday 7th February 2002 I enclose a copy of the Disciplinary Procedure and a standard contract of employment as requested.
I will forward to you a copy of the hearing notes once they have been completed.
During the conversation I confirmed that you had been reinstated at the appeal hearing and that if you no longer wished to be employed by the company then you need to submit a letter of resignation.
I note that you have not reported for duty on Monday or Tuesday 12th and 13th February and must advise you that you will be regarded as absent. If your absence continues, then you will be dealt with in accordance with the company procedures.
If you have any queries please do not hesitate to contact me."
Sick notes were then submitted by Mr Roberts, one of them dated 14th February, another 15th February, and another 22nd February. The position was that Mr Roberts never returned to work. Ultimately, by August 2002 he was treated by West Coast Trains Limited as having resigned.
"Dear Mr Roberts,
I am writing to confirm the decision advised to you at the conclusion of the Clause 9 Disciplinary Hearing held on 6th November 2001 that you are dismissed from the employment of West Coast Trains Limited with effect from 6th November 2001."
The letter went on to say that he had a right of appeal against that decision, which must be submitted in writing within seven days from the date of the hearing, clearly stating the grounds of his appeal. He was informed of the right to be represented by a spokesperson, who should be either a fellow employee of West Coast Trains Limited or a representative of a trade union recognised by West Coast Trains.
"On the basis of our findings of relevant fact, and applying the appropriate law, the Tribunal has reached the following conclusions:
(i) The applicant was not dismissed by the respondent.
(ii) His contract of employment provided for an appeal process, and allowed disciplinary sanctions of suspension without pay and demotion. This is what happened in this case, and he was demoted in accordance with his existing contract of employment. No new contract was entered into when he was demoted to the position of customer services assistant. It is difficult to distinguish this case from the case of Beckett, and in accordance with the case of Savage we find that he was successful on his appeal against his dismissal and therefore his employment continued."
The Tribunal went on to consider what they would have concluded on the question of unfair dismissal, if they had found that he had been dismissed. The claim failed. No remedy hearing was required.
"(16.1) If charged with any disciplinary offence you will be given a hearing at which you can state your case. You may be suspended from work during investigations prior to the hearing [that happened in this case]. After the hearing, if the charge is proved, InterCity West Coast Limited may --
• dismiss you without notice
• suspend you from work for a defined period
• reduce you in grade
• transfer you to another post or location (which may reduce you in grade)
• suspend of limit your travel facilities."
The consequences of suspension are then spelt out.
(1) The employment contract of Mr Roberts included provisions in the staff handbook, in the Onboard Terms and Conditions and in the Procedure Agreement, which entitled West Coast Trains to impose a range of sanctions when disciplining an employee for misconduct. That range could be imposed either at first instance or on an appeal brought by an employee, who was dissatisfied by the first instance decision.
(2) The range of sanction included dismissal. That was the sanction imposed at first instance and was effective at the date when Mr Roberts presented his complaint of unfair dismissal to the Tribunal.
(3) The range also included reduction in grade or demotion. That was the decision ultimately taken on Mr Roberts's appeal.
(4) The outcome of the appeal procedure initiated by Mr Roberts, and not withdrawn by him before the completion of the appeal procedure, was that the decision to dismiss should be replaced by a decision to demote.
(5) The terms of Mr Roberts' employment contract permitted West Coast Trains to impose such a sanction in place of the earlier decision to dismiss, so that they could retrospectively achieve a position where he was not dismissed for the purposes of bringing an unfair dismissal claim.
(6) It was within the terms of that contract that the appeal decision was taken. It was not necessary to effect an express reinstatement to the position of chef previously held by him, nor was it necessary to make an offer to him to enter into a new contract in order to continue Mr Roberts' contract of employment.
"There is a danger (arising from the multiplicity of reports) in these industrial tribunal cases which are decided upon their own facts, for the tribunal of fact to ask itself: 'Is this case like that case?' That is not the right approach. The right approach is first to find the facts -- that is the function of the tribunal of fact -- and then, having found those facts, to apply to them legal principles which are very clear so far as the present case is concerned."
I say, with respect, that Mr Clement in his skeleton argument has devoted too much of his argument to comparing this case with the decisions of the cases of Savage and Beckett. It is not the most profitable way of pressing the argument that his client had been dismissed.
"In our view, when a notice of immediate dismissal is given, the dismissal takes immediate effect. The provisions of this contract as to the appeal procedure continue to apply. If an appeal is entered, then the dismissed employee is to be treated as being 'suspended' without pay during the determination of his appeal, in the sense that if the appeal is successful then he is reinstated and he will receive full back pay for the period of the suspension. If the appeal is not successful and it is decided that the original decision of instant dismissal was right and is affirmed, then the dismissal takes effect on the original date. In our view, that is the date on which the termination takes effect for the purposes of the Act."
There is a further passage on page 202A-E:
"But there is nothing to mitigate the injustice to an employee which would result if he were unable to complain that his employer, though acting reasonably on the facts known to him when he summarily dismissed the employee, acted quite unreasonably in maintaining his decision to dismiss in the face of mitigating circumstances established in the course of the domestic appeal procedure which a reasonable employer would have treated as sufficient to excuse the employee's offence on which the employer's real reason for the dismissal depended. Adopting the analysis which found favour in J Sainsbury Ltd v Savage  ICR 1, if the domestic appeal succeeds the employee is reinstated with retrospective effect; if it fails the summary dismissal takes effect from the original date. Thus, in so far as the original dismissal and the decision on the domestic appeal are governed by the same consideration, the real reason for dismissal, there is no reason to treat the effective date of termination as a watershed which separates the one process from the other. Both the original and the appellate decision by the employer, in any case where the contract of employment provides for an appeal and the right of appeal is invoked by the employee, are necessary elements in the overall process of terminating the contract of employment. To separate them and to consider only one half of the process in determining whether the employer acted reasonably or unreasonably in treating his real reason for dismissal as sufficient is to introduce an unnecessary artificiality into proceedings on a claim of unfair dismissal calculated to defeat, rather than accord with, the 'equity and the substantial merits of the case' and for which the language of the statute affords no warrant."
" . . . that if the contract ceased during the period of suspension, should the employee lose the appeal, it must likewise cease if the appeal succeeded so that the odd position would arise that a successful employee who won his appeal could claim compensation on the basis that he had been wrongly dismissed notwithstanding that the clause in question required him to be reinstated. That is an Alice in Wonderland proposition which, with due respect to counsel, is beyond my comprehension."
Order: Appeal dismissed. Appellant to pay Respondent's costs.