COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
(Vice-President, Court of Appeal, Civil Division)
LORD JUSTICE DYSON
LADY JUSTICE SMITH
| Andrew James Taylor
|OCS Group Ltd
Ms Tess Gill (instructed by Disability Rights Commission) for the Respondent
Hearing date : 3 April 2006
Crown Copyright ©
Lady Justice Smith :This is the judgment of the court.
The Proceedings before the Employment Tribunal
"Where the employer has fulfilled the requirements of subsection (l), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and
(b) shall be determined in accordance with equity and the substantial merits of the case."
"The appeal was by way of a review, rather than a rehearing and Ms Sener neither heard nor read any matter that caused her to doubt the dismissal decision."
"We further find that the appeal hearing was not a rehearing but was a review. Ms Sener explains in her statement (see paragraph 8) that she agreed to hear the appeal to see if any new grounds might be stated during the process. Although we accept that her review was thorough, it did not constitute a rehearing and it is also confirmed in paragraph 30 of her statement where she concludes that Mr Taylor had brought no new explanation or information forward that would change the conclusions of the investigatory hearing or the disciplinary hearing and she considered therefore that she had no choice other than to uphold the decision to dismiss in accordance with the disciplinary procedure. The disciplinary procedure does not provide any detail as to how an appeal should be conducted
(p.152). However, the premise of Ms Sener's appeal was to review and to not rehear the original dismissal decision."
4(2) It is unlawful for an employer to discriminate against a disabled person whom he employs -
(C) by dismissing him or subjecting him to any other detriment.
5(1) For the purposes of this Part, an employer discriminates against a disabled person if -
(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot show that the treatment in question is justified.
"Turning first to section 5(1) we conclude that the material reason for the Applicant's dismissal was his conduct. We accept that it is a very serious matter for an employee, particularly one based in the IT department, with access to other staff members' computers, to forward e-mails from colleagues' terminals to their own, without permission, that are not related to the job in hand. We agree with Mr Barr (OCS's representative) that the material reason is not related to the Applicant's disability and the S. 5(1) DDA claim must fail."
The Appeal to the EAT
Permission to Appeal
The Appeal on Unfair Dismissal
"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 consider only one half of the process... is to introduce an unnecessary artificiality….."
".....their Lordships recognise and indeed assert that no clear and absolute rule can be laid down on the question whether defects in natural justice appearing at the original hearing, whether administrative or quasi-judicial, can be 'cured' through appeal proceedings. The situations in which this issue arises are too diverse, and the rules by which they are governed so various, that this must be so."
"In their Lordships' opinion this is too broadly stated. It affirms a principle which may be found correct in a category of cases. ... But to seek to apply it generally overlooks ... both the existence of the first category, and the possibility that, intermediately, the conclusion to be reached … is that those who have joined in an organisation, or contract, should be taken to have agreed to accept what, in the end, is a fair decision, notwithstanding some initial defect."
"In their Lordships' judgment, such intermediate cases exist. In them, it is for the court, …. to decide whether at the end of the day, there has been a fair result reached by fair methods..... Naturally there may be instances when the defect is so flagrant, the consequences so severe, that the most perfect appeals or rehearings will not be sufficient to produce a just result. ….There may also be cases when the appeal process itself is less than perfect: it may be vitiated by the same defect as the original proceedings: or short of that there may be doubts whether the appeal body embarked on its task without predisposition or whether it had the means to make a full and fair enquiry, for example where it has no material but a transcript of what was before the original body. In such cases it would no doubt be right to quash the original decision."
And at G, he continued:
"What is important is the recognition that such cases exist, and that it is undesirable in many cases of domestic disputes, particularly in which an inquiry and appeal process has been established, to introduce too great a measure of formal judicialisation."
"Ultimately, an industrial tribunal has to answer the question whether the dismissal is fair, bearing in mind the wording of section 57(3) [of the Employment Protection (Consolidation) Act 1978, the predecessor of section 98(4) of ERA  and all the circumstances of the case including the equity and substantial merits. The issue is often posed in the form -has the employer, on the facts of the case as found by the Tribunal, and in all the circumstances, reached a decision which an employer could reasonably have reached? …. It follows that the fairness issue must be decided after the appeal process has been completed."
"It would follow therefore that not every formality of legal or quasi-legal process is required during the disciplinary and appeal procedures. Each set of circumstances must be examined to see whether the act or omission has brought about an unfair hearing.
If it has, then whether or not an appeal procedure has rectified the situation must depend upon the degree of unfairness at the initial hearing. If there is a rehearing de novo at first instance, the omission may be corrected, but it seems to us that if there is to be a correction by the appeal then such an appeal must be of a comprehensive nature, in essence a rehearing and not a mere review."
"This was not a rehearing in any sense of the word. It was simply a review of what had already occurred with further opportunity to making representations. It follows therefore, in our judgment, that the errors at the earlier hearing were not rectified."
"Although the procedure at the initial stages was clearly faulty and unfair, nevertheless, the situation, when looked at in the round, can be rectified if there is in effect a full and proper hearing on appeal, a rehearing. In the present case it was important for the Industrial Tribunal to look at the appeal …. to see whether it could properly be so described, and looking at fairness in the round, to describe whether the early unfairness had been rectified."
"a fair appeal will, however, cure an unfair initial disciplinary hearing only if it takes the form of a complete rehearing of the case against the employee, and not just a review of the initial hearing."
"With great respect, it seems to us that we are in danger of losing sight of the statutory test for unfair dismissal."
The EAT then set out s. 98(4) ERA 1996 and at page 11C continued:
"It will be quite obvious to all lawyers that the words of this part of the statute could not be in wider terms according to the Industrial Tribunal, the fact finding body, a very wide margin of appreciation. It would be somewhat surprising if Industrial Tribunals were to be invited to become bogged down in difficult issues as to whether an appellate process in a particular case fell within the definition of a rehearing or within the definition of a review' ."
"What we take from this decision (Whitbread) is simply this. Where an Industrial Tribunal is considering a complaint of unfair dismissal and where an employee under his contract of employment has the right to appeal and exercises that right, in considering whether the employee has been fairly or unfairly dismissed, the Industrial Tribunal should have regard to the overall process of the termination of the contract of employment, or, in other words, the dismissal.
In some circumstances unfairness at the original dismissal stage may be corrected or cured as a result of what happens at the appellate process: that will depend on all the circumstances of the case. It will depend upon the nature of the unfairness at the first stage; the nature of the hearing of the appeal at the second stage; and the equity and substantial merits of the case.
Whether or not an appeal cures a procedural defect is not a matter to be determined by reference to the precise category into which the appeal process falls. We are confident that that is the position because in many cases it will be difficult to categorise an appellate process as being either a rehearing on the one hand or a review of what had already occurred on the other. They may be a mixture of the two….. Whether the procedural defect which had been identified by the Industrial Tribunal was corrected by that process or not, is purely a question of fact and judgment for the Industrial Tribunal."
"Submissions to the effect that an appeal hearing should be a rehearing are often motivated by the belief that only thus can sufficient reconsideration be given to elements of the decision of the lower court. In my judgment, this is largely unnecessary given the scope of a hearing by way of review."
"Thus, in so far as 'rehearing' in r.52.11(l)(b) may have something of a range of meaning, at the lesser end of the range it merges with that of 'review'. At this margin, attributing one label or the other is a semantic exercise which does not answer such questions of substance as arise in any appeal."
"Whether someone acted reasonably is always a pure question of fact. Where parliament has directed a tribunal to have regard to equity -and that, of course, means common fairness and not a particular branch of the law -and to the substantial merits of the case, the tribunal's duty is really very plain. It has to look at the question in the round and without regard to a lawyer's technicalities. It has to look at it in an employment and industrial relations context and not in the context of the Temple and Chancery Lane."
Application to the Present Case
"18. The Tribunal is aware that some of the answers that the applicant gave at the investigatory hearing were damaging to his case and we note that the allegations against him were serious. However, the applicant's lack of understanding and informed participation at the disciplinary hearing was such as to render his dismissal unfair and these matters are relevant only for remedy not liability."
Ground Two: The Reason for the Dismissal (The Cross-Appeal)