England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Thursday, 7th June 2001

1. LORD JUSTICE TUCKEY: The respondent to this appeal, Mr. Liddiard, was summarily dismissed by the Post Office in January 1999 following his involvement the previous summer in football hooliganism during the World Cup when England played Tunisia in Marseilles. After a three day hearing an Employment Tribunal found that his dismissal was unfair, that he had not contributed to it and that he should be reinstated. The Post Office's appeal to the Employment Appeal Tribunal was summarily dismissed. Before this court the Post Office contend that the Employment Tribunal misdirected itself and/or that its decisions were perverse, and so the Employment Appeal Tribunal should have allowed its appeal.
2. The respondent had been employed by the Post Office since 1986 and had an excellent work record. He was a coder who worked nights at the post office in Hemel Hempstead. He regularly travelled abroad as an English football supporter. Before the match with Tunisia the supporters of the opposing teams became involved in violent clashes in the streets of Marseilles. The respondent admitted that he had thrown bottles at the Tunisian fans. French riot police intervened. He was arrested and charged with "armed attack on a police officer with three aggravating circumstances resulting in physical incapacity not exceeding eight days directly related to a sporting offence and at a meeting". After being remanded in custody for a month he was tried and convicted of this offence and sentenced to 40 days' imprisonment. Although he has continued to protest his innocence he did not appeal the French court's decision.
3. In the meantime, the activities of the English football hooligans in Marseilles had received widespread press coverage. The Mirror mounted a name and shame campaign in which the respondent (identified as Libbiard because this was the name under which he travelled to France) was named and identified as a postman. The violence was condemned by various public figures and the Prime Minister told the House of Commons that he hoped that strong action would be taken against football hooligans who were employed by the public services. The Post Office suspended the respondent and charged him with gross misconduct. The allegation was that "by your actions you have brought Royal Mail into disrepute which brings into question your suitability for continued employment by Royal Mail."
4. The disciplinary hearing was postponed until a transcript of the French proceedings had been received but the decision was then taken to dismiss the respondent by his night shift manager, Mr. Newell. The respondent's appeal was dismissed by the appeals manager, Mr. Nagle. Both Mr Newell and Mr Nagle gave evidence to the Tribunal that the respondent had been dismissed because he had brought the Post Office into disrepute. They denied that they had been pressurised by senior management into sacking him, come what may.
5. In dismissing the respondent's appeal to him, Mr. Nagle put the Post Office's position clearly when he said:

"In coming to my conclusions on this case I have tried to look at it from the point of view of what would have happened in a similar situation if an employee of Royal Mail had been found guilty of assault on a police officer, say, for example, in this country, whether or not it involved a sporting occasion like a football match. I think with Royal Mail's high profile image as a major employer and a major business in the country, the facts being reported widespread in the national press, it would be difficult to defend employing somebody with such a record. It would be difficult to convince customers that we are genuine when we say we wish to set high standards in both the work that we do and the staff that we employ."

6. At the time of the hearing before the Tribunal the law relating to unfair dismissal was in a state of some uncertainty. The relevant parts of the statutory code, now in section 98 of the Employment Rights Act 1996, say:

"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

(a) the reason... for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it -

(b) relates to the conduct of the employee...

(4) Where the employer has fulfilled the requirements of subsection (1), 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."

7. For many years the approach taken to the provisions of subsection (4) and its identical statutory predecessors followed the guidance given by Browne-Wilkinson J (as he then was) in Iceland Frozen Foods Limited v Jones [1983] ICR 17,24 and 25, where he said:

"We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [section 98(4)] is as follows: (1) the starting point should always be the words of [the subsection] themselves; (2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair; (3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer; (4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another; (5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair."

8. However, in Haddon v Van den Bergh Foods [1999] ICR 1150 the Employment Appeal Tribunal disapproved of this approach, on the basis that it was a mantra which led tribunals into applying what amounted to a perversity test and prevented them from approaching the issue of reasonableness by reference to their own judgment of what they would have done had they been the employers.
9. We are told that at the beginning of the hearing before the Tribunal in this case the chairman informed the parties of the Haddon judgment which had been given by the Employment Appeal Tribunal a few months earlier. Haddon and a number of other cases, which added to the confusion in this area of law, were considered by this court in Foley v Post Office and another case in which judgment was handed down on 31st July 2000, after the decisions of the Tribunal and the Employment Appeal Tribunal in this case. In those cases this court emphatically confirmed the Iceland approach. Haddon, they said, was an unwarranted departure from binding authority.
10. The decision of the Tribunal in this case has to be considered with this history in mind. They found that the reason for the respondent's dismissal was conduct. That meant that the requirements of section 98(1) were met. The Tribunal went on to conclude that the Post Office had not acted reasonably in treating this conduct as a sufficient reason for summarily dismissing the respondent. Their reasons for this conclusion were as follows:

"(1) The respondent had an excellent employment record over a period of 12 1/2 years.

(2) The conduct complained of was unrelated to his employment.

(3) His employment was inside the Post Office and it was unlikely that he would have substantial contact with the public.

(4) There are anomalies in the way the case was adjudicated in France. The applicant appears to have been originally charged with throwing beer bottles at the Toulouse fans but eventually appears to have been charged with assaulting the police.

(5) Mr Newell, the dismissing officer, admitted that there had been pressure from his senior managers to take some action.

(6) It was inconceivable that he and Mr Nagle could not be influenced by the press coverage that had covered these incidents.

(7) The applicant had no previous criminal convictions in this country and no regard appears to have been taken of the fact that he denied committing the offences and appeared to be in the wrong place at the wrong time when the difficulties arose between the football fans."

11. There is no reference in the decision to "the band of reasonable responses" test. It is self-evident from their reasons, which I have quoted, that the tribunal did not specifically address that question. Mr. Griffith-Jones QC for the Post Office says that this is understandable in view of the history to which I have referred. Moreover, he submits that it is clear from their reasons that the Tribunal have substituted their own views of what the Post Office should have done for those of the employer.
12. Miss Hewson for the respondent submits that there is no indication that the Tribunal misdirected itself. They asked and answered the simple statutory question whether the Post Office acted reasonably in treating the respondent's misconduct as a reason for summary dismissal.
13. I do not think that it is necessary for a tribunal such as this to set out in any detail the legal approach which it has followed. All an appellate court will be concerned to see is that it has asked itself the right questions. In this case I do not think that it is possible to say that the tribunal did ask themselves the right question. Although they did not say so, there must be a strong suspicion that they adopted the Haddon approach. But my real criticism of their decision is that the tribunal did not really address the central issue in the case. This was whether it was reasonable for the Post Office to dismiss the respondent for the reasons given by Mr Nagle, which I have quoted, because they believed that his conduct had brought them into disrepute. The Tribunal referred to the press coverage and the fact that Mr. Newell and Mr Nagle would have been influenced by it. But this misses the point. It was the fact of the press coverage which was itself a consequence of the respondent's conduct which led the Post Office to believe that they had been brought into disrepute. The question was whether this was a sufficient reason for dismissing the respondent.
14. Miss Hewson submits that the Post Office's reputation was not brought into disrepute. It has 200,000 employees. The respondent had no contact with the public. By the time of the disciplinary proceedings the press had lost interest in the matter and no member of the public had expressed concern about the respondent's continued employment. These are relevant matters for consideration, as was the respondent's employment record, in considering whether summary dismissal was within the range of reasonable response. But this is not the way in which the Tribunal approached the matter.
15. There is a further objection to the Tribunal's reasons. They suggest that there was something unsatisfactory about the French proceedings and say that the Post Office should have taken account of the fact that the respondent denied the offence of which he was convicted. Earlier in their reasons they had noted that Mr Newell had not made any further investigation but had relied upon the conviction. I think that he was entitled to do so. He could not conduct any meaningful investigation of his own into what had happened in France. In P v Nottingham County Council [1992] ICR 706,712 Balcombe LJ said:

"When an employee has pleaded guilty to an offence or has been found guilty by a decision of a court or the verdict of a jury, it is reasonable for an employer to believe that the offence has been committed by the employee. Any other conclusion would be ridiculous."

16. I agree. In dealing with the question of contribution the Tribunal said:

"As far as contribution is concerned, we conclude that the real reason for the applicant's dismissal was the input of politicians by their statements into the situation which resulted in newspaper coverage and, as a result, senior managers felt under pressure to take action and dismiss this applicant. We are satisfied that if this input had not occurred, then the applicant would not have been dismissed, and therefore he was dismissed for matters beyond his control. The respondents argue that this brought the Post Office into disrepute, but the only reason that this happened was because of the publicity which, in our view, was given to the matter for political reasons."

17. This reasoning again demonstrates that the Tribunal missed the point. The publicity resulted from the conduct of the respondent and other English football hooligans. This, it was said, brought the Post Office into disrepute. The Tribunal had already concluded that the respondent was dismissed for misconduct. I cannot understand the conclusion that the real reason for his dismissal was the input of politicians. I do not think that this part of the decision can stand for those reasons in any event.
18. As it is, for the reasons I have given, I do not think that any part of the Tribunal's decision can stand. The Employment Appeal Tribunal (Judge Wilcox presiding) ought to have allowed the Post Office's appeal. It is not necessary to examine their reasons for dismissing it, other than to say that I find them unconvincing.
19. Mr. Griffith-Jones invited us to decide the case here and now in the Post Office's favour. We should only do this if we thought that this was the only possible result. I am not convinced that it is. A proper assessment of the Post Office's response can and should only be made by an Employment Tribunal. Unfortunately, the case will have to be remitted for rehearing.
20. I should add that in her skeleton argument Miss Hewson sought to bolster the respondent's case by reference to a battery of Convention rights: Article 7 (no punishment without law); Article 8.1 (right to respect for private life); and Article 1 of the First Protocol – (right to peaceful enjoyment of possessions). In her oral submissions Miss Hewson accepted that her skeleton argument, written in the heady days soon after the Human Rights Act came into force, might have been over ambitious. Nevertheless, she contended that section 98 of the 1996 Act should be read and construed in a way which was compatible with human rights. We heard little argument about this. I say no more than that I can see nothing which requires section 98 to be construed and applied in any way differently from the way it was before the Human Rights Act came into force.
21. For the reasons I have given, I would allow the appeal and remit the respondent's claim for unfair dismissal to be reheard by a different employment tribunal.
22. LORD JUSTICE LATHAM: I agree.
23. LADY JUSTICE ARDEN: I agree.
Order: Appeal allowed with costs in the sum of £8,000 inclusive of VAT; respondent's claim for unfair dismissal to be heard to be a different employment appeal tribunal; application for permission to appeal to House of Lords refused. (Order not part of the judgment of the court)