England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge Peter Clark)

		Royal Courts of Justice Strand London WC2
		Monday, 14th May 2001

Monday, 14th May 2001

1. LORD JUSTICE PETER GIBSON: Jane King seeks permission to appeal out of time from the order of the EAT of 27th September 2000 at a without notice preliminary hearing. By that order the EAT dismissed her appeal from the decision promulgated on 6th September 1999 of an Employment Tribunal sitting in Stratford. The Tribunal thereby dismissed Miss King's complaint that she had been unfairly dismissed by her employers, the Commissioners of Customs and Excise ("Customs"). She had 14 days from 5th October, the day when the EAT's judgment was sent to the parties, in which to file her Appellant's Notice seeking permission to appeal. Her Appellant's Notice was not filed until 22nd January 2001. She is therefore over three months late. She has not been able to explain her delay, save by saying that documents were sent to the court. I do not know what documents were sent. The clear fact is, as is apparent from the date stamp on her Appellant's Notice in the bundle, that the Notice was not received until 22nd January.
2. THE APPLICANT: There is the letter there, your Honour.
3. LORD JUSTICE PETER GIBSON: Would you please not interrupt my judgment.
4. However, the court will always on such applications look to see whether or not the appeal which the applicant would wish to bring raises some point of substance on which there is a real prospect of success. To that I now turn.
5. I take the facts from the findings made by the Tribunal.
6. Miss King was employed from 1st December 1986 to 8th February 1999 by Customs. Her job was that of a Data Editor for the trade and statistical department. She had a good employment record. She lives with Mr Kitto and their two children. Mr Kitto was made redundant in 1998 and was in receipt of State benefits. On 20th October 1998 Mr Kitto and Miss King were invited to visit friends in Majorca. Mr Kitto arranged the flight out for them both on 25th October and the return flight on 26th October. They took two suit cases, one inside the other. Mr Kitto brought £2,700 in cash, the proceeds of an insurance claim. Miss King said that prior to departure she and Mr Kitto had discussed the purchase of cigarettes for their own consumption. The purpose of the trip was to visit friends and to buy cigarettes. 34,800 cigarettes were purchased by two separate purchases. They were packed by Miss King in the spare suitcase. Miss King said that 10,000 cigarettes were for her own consumption. On 26th October, when they returned to Luton Airport, Customs confiscated 34,000 cigarettes. Mr Kitto subsequently attempted to recover the cigarettes by an application to the Magistrates Court, claiming that the cigarettes were for personal use. But that application failed and an appeal to the Crown Court was dismissed. Miss King was never prosecuted. On 27th October 1998, however, information about what had occurred was passed to the office where Miss King worked. She prepared a statement about the events. She was suspended. The head of the office where Miss King worked carried out an inquiry. On its completion she was subjected to disciplinary proceedings. On 25th January 1999 she was told that the Customs had lost confidence in her integrity because she had been knowingly involved in the importation of the cigarettes in full knowledge of the circumstances and in breach of Customs' disciplinary code, which amounted to gross misconduct. She was accordingly dismissed. She appealed but her appeal was dismissed.
7. Miss King applied to the Tribunal complaining that she had been unlawfully dismissed. At the hearing she was represented by Mr Kitto. The Tribunal, in addition to finding the facts which I have set out, directed themselves that the Employment Rights Act 1996 placed the burden of proving the reason for the dismissal and that that reason fell within section 98(2) on the employer. It referred to the test imposed by section 98(4). It said that it had to consider the procedure employed by Customs. It considered the leading case in this area, British Home Stores v Burchell [1980] ICR 303, and said that the employer must establish a genuine belief in Miss King's misconduct, based on reasonable grounds and after a reasonable investigation. It also said that it had to consider whether the penalty was within the band of reasonable responses of a reasonable employer having regard to the circumstances of the case.
8. The Tribunal concluded that the procedure adopted by Customs was fair. It said that it was for the Tribunal to decide not whether Miss King was guilty of the misconduct but whether the employer had acted reasonably in reaching that conclusion. The Tribunal found that Customs had a genuine belief in the misconduct and said of the investigation that it was as thorough an investigation as one might expect to see. It found that Customs were entitled to conclude that there was a joint enterprise to bring into the country some 34,800 cigarettes not for personal consumption. It found that that misconduct was the reason for dismissal and that the penalty of dismissal was reasonable.
9. Before the EAT Miss King had professional representation. Miss King had sworn an affidavit in support of her appeal. In it she complained of the behaviour of the Chairman of the Tribunal, who, she said, had engaged in banter with counsel for Customs throughout the hearing, laughing at Mr Kitto's amateur efforts to represent her. The Chairman was asked to comment. I have not seen the Chairman's letter -- it has not been put into the bundle -- but it is apparent from the EAT's decision that the Chairman, as the EAT put it, quite simply rejected the suggestion both that he engaged in banter with Customs' counsel and that he was laughing at Mr Kitto's representation. The EAT accepted what the Chairman said and found that no arguable point of law was raised.
10. Before this court a number of points have been taken by Miss King appearing in person with a McKenzie friend, Mr Brock, who is an unqualified lawyer studying part-time. Two skeleton arguments have been put before me, one supplied as the grounds of appeal and a further skeleton which was only handed to me this morning. The substance of the case is that Miss King did not break any rules or regulations and committed no offence. Unfortunately, that is not the way the matter has to be decided. As has been made clear in British Home Stores v Burchell and in numerous subsequent cases, the test is whether the employer believed and had reasonable grounds for believing, after adequate investigation, that the employee was guilty of the misconduct. Whether or not the employee is actually guilty of the misconduct is not relevant to the fairness of the dismissal. It matters not, therefore, that it is said that Miss King did not commit any offence and broke no regulations.
11. It is then said that the fact that Miss King worked for Customs is irrelevant. That is a surprising submission to make. In my judgment it is only common sense that a Tribunal, considering the fairness of a dismissal for misconduct relating to the bringing into this country of a large quantity of cigarettes not for personal consumption, is entitled to take into account the functions of the employer as a public service which has employed Miss King as a public servant. As is stated in the Tribunal's decision, that public service is charged with the responsibility of ensuring compliance with import controls and with clear standards of conduct and responsibility.
12. In my judgment in considering whether or not the decision to dismiss was fair and whether it fell within the band of reasonable responses open to a reasonable employer the Tribunal was entitled to take into account the matters which I have just mentioned. In my judgment it is plain beyond argument, therefore, that this submission that the fact that Miss King worked for Customs was irrelevant is not one that can have any real prospect of success.
13. Next, it is said that having regard to the decision of the EAT in Haddon v Van Den Bergh Foods Ltd [1999] IRLR 672 the law has been changed. It has been said in numerous cases that the decision of a tribunal should not be reversed merely because the appellate court would not have come to that decision on the facts. It is suggested that Haddon made a fundamental change in the law. In my judgment if Haddon did go that far it was plainly wrong. In any event, undoubtedly what Haddon did decide, that is to say that the range of reasonable responses test was wrong, has been disapproved in subsequent cases, most notably in Post Office v Foley, HSBC Bank Plc v Madden [2000] ICR 1283. As is said in Harvey on Industrial Relations Q/722, thereby the Court of Appeal has restored orthodoxy. That suggestion is quite hopeless.
14. Then it is said that the Tribunal reached a perverse decision, one which no reasonable tribunal could reach on the facts of the case. In support of that submission a number of facts are set out. They are largely matters to which the Tribunal itself had regard, for example that Miss King had been employed by Customs for over 12 years and had an unblemished employment record.
15. In my judgment, the difficulty of proving perversity is not overcome in this case. It is only in very rare and extreme cases that the court can say that the Tribunal, charged by Parliament with finding the facts, did not have the material before it on which it could have found the facts which it did. I do not have any notes of the evidence before the Tribunal, and it seems to me to be quite impossible to say that, on the facts which the Tribunal has set out, it reached a conclusion which was perverse. There is no real prospect of success on that point either.
16. Finally, although it is not a point which has been advanced in the second skeleton argument, I should advert again to what is said about the Chairman's behaviour, because that is a point which is raised in the first skeleton argument. It is said that there was a breach of Article 6 of the European Convention on Human Rights because the Tribunal, through the conduct of the Chairman, would not be seen by an objective bystander as an impartial tribunal. The difficulty with that is establishing the facts alleged by Miss King. As I have said, she had put in an affidavit making complaints about the Chairman, but, as is the invariable practice when there are such complaints, the Chairman was invited to comment. As the EAT held in Dexine Rubber Co. Ltd v Alker [1977] ICR 434 at pp.438,9 the Chairman's account has to be accepted unless there is unanimity between those who appear for both parties before the Tribunal that the matters of complaint did in fact occur. I have already pointed out that the EAT said that the Chairman rejected the factual allegations made by Miss King. In those circumstances there can be no real prospect of success on that ground either.
17. I do not doubt the sincerity of Miss King in being unhappy with the decision that has been reached by the Tribunal and upheld by the EAT. Unfortunately, it happens only too often that a person who makes a claim to the Tribunal finds that the facts found by the Tribunal are not what the applicant hoped would have been found. But when such facts are found it is extremely difficult, as I have already tried to make clear, for an appellate tribunal to upset those findings. In the present case there is no prospect of success of upsetting those findings on the material that has been put before me, nor is there any other compelling reason why an appeal should be allowed to go ahead.
18. Accordingly I must dismiss this application.
Order: Application dismissed. (Order does not form part of approved judgment)