England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Wednesday, 10th July 2002

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. The application is made by Mr Franklin Maxham in person. It was originally fixed to be heard last week and was adjourned, as it clashed with a course on which Mr Maxham had enrolled. He wishes to have permission to appeal against the decision of the Employment Appeal Tribunal, which gave judgment on 2nd May 2002.
2. In the judgment given by Mr Commissioner Howell QC on behalf of the tribunal Mr Maxham's appeal was dismissed. He was appealing against a decision of the Employment Tribunal sitting at London Central. The hearing of Mr Maxham's claim for unfair dismissal had been heard on 8th and 9th February 2001. In the extended reasons sent to the parties on 8th March 2001 the Employment Tribunal explained the reasons for their unanimous decision that Mr Maxham was not unfairly dismissed and his claim was therefore refused. I have explained to Mr Maxham that there is no appeal against the findings of fact made by the Employment Tribunal. The only right of appeal is on questions of law arising in their proceedings and from their decision. I also explained to Mr Maxham that permission can only be granted, if the court forms the view that there is a real prospect of the appeal succeeding on a question of law and that there is no point in allowing an appeal, which will fail, to proceed any further.
3. Mr Maxham has put in his appeal notice the grounds of his appeal. At the hearing this morning he has explained his main points of dissatisfaction with the actions of his employers and with the decision of the tribunal. The events which have given rise to this dispute are these. Mr Maxham was employed from 27th January 1997 to 14th February 2000 by Provend Services Ltd as a vending machine operator/van driver. This involved vending machines which dispense food snacks. His line manager was Miss Angela Coad. He was dismissed on 14th February 2000 for alleged misconduct following complaints, it was alleged, from customers about his rude and aggressive behaviour. The complaints led to him being suspended and given a final written warning. There were disciplinary hearings and unsuccessful appeals from the decision to dismiss him.
4. The Employment Tribunal summarised the claim and recorded that evidence was given by Mr Maxham on his own behalf and on behalf of Provend Services Ltd by Miss Angela Coad and also Mr Tony Brotherwood, finance director, who had heard Mr Maxham's final appeal against his dismissal. The tribunal correctly stated that their task was to determine whether Provend Services Ltd had satisfied the test laid down in the leading case of Burchall v British Home Stores, which applies to cases of dismissal for misconduct. A tribunal has to be satisfied by an employer dismissing for such reason that the employer had a genuine belief that the employee had misconducted himself, that that belief was held on reasonable grounds, that a reasonable investigation had been carried out into the alleged misconduct and, finally, whether a fair procedure had been followed in relation to the dismissal and whether the sanction of dismissal was within the band of reasonable responses.
5. There is no error of law in the direction of the Employment Tribunal in paragraph 3 of its reasons. The tribunal then set out its conclusions on the various aspects of the Burchall test. The tribunal concluded that the employer did have a genuine belief, supported by reasonable grounds, for concluding that there had been misconduct by Mr Maxham and that it had carried out a reasonable investigation. The tribunal also concluded that the sanction of dismissal was within the band of reasonable responses. The tribunal said this in paragraph 6:

"As to the reasonableness of the sanction, we bear in mind that Mr Maxham was employed in a service industry, coming into daily contact with customers at all levels. Mr Thomas was the financial controller, European Operations, of Adlers, and it was particularly unfortunate that Mr Maxham should have got into an altercation with such a senior person. Although Adlers turned out to be a small customer of the respondents in terms of revenue, nonetheless the image of the company was important and it was that which was being put at risk by Mr Maxham's conduct. The previous incident with Comag was just as serious and the repetition of Mr Maxham's conduct justified the respondents in dismissing him. That decision was in our view well within the band of reasonable responses open to the respondents."

6. The tribunal was critical of the procedure followed by Provend Services Ltd in respect of Mr Maxham's dismissal, and most of the points he made related to the procedural defects in the dismissal process. Mr Maxham had submitted that he was unable properly to defend himself, he had been suspended without being given an opportunity to deal with the complaints against him and he had been given no warning that his job was at risk as a result of the complaints.
7. The tribunal found that the disciplinary rules of Provend Services Ltd had not been followed by Miss Coad when administering the final written warning. She had set out her decision and the right of appeal, but she had given no indication that repetition could lead to dismissal. The letter summoning Mr Maxham to a disciplinary hearing merely gave the date of the hearing, and Mr Maxham had not been told that repetition of his behaviour could lead to dismissal or the disciplinary hearing to which he had been summoned could also have that result. The tribunal concluded that that defect in the final written warning and in the disciplinary hearing did not make the dismissal unfair. First, they said that Mr Maxham should have realised his conduct was unacceptable and that he had been given a final written warning and it did not take much imagination to appreciate that repeated conduct within a short time might lead to dismissal. Secondly, the tribunal explained that any procedural defects were cured on the appeal process, which amounted to a full rehearing of the case by Mr Brotherwood, the hearing having been a thorough one which took more than two hours. Mr Maxham was obviously aware by then of the serious nature of the allegations against him and that they could lead to dismissal.
8. At the final appeal hearing he was given a full opportunity to present his case. The Employment Appeal Tribunal in the judgment of 2nd May 2002 examined in detail the decision of the Employment Tribunal and concluded unanimously that the issues raised in the amended notice of appeal did not reveal an error of law in the decision of the Employment Tribunal. The appeal was therefore dismissed. There was some disagreement in the Employment Appeal Tribunal as to whether Mr Maxham should be allowed to raise further matters which were not in his amended notice of appeal. The majority decided he was not entitled to raise the further issues at that point.
9. Mr Maxham has helpfully referred to a number of documents in the bundle. He prefaced his reference to the documents by saying that key points in his case had been missed out by the Employment Tribunal. He referred, in particular, to the letters of complaint against him on page 10 of the bundle from Comag Magazine Marketing and on page 20, where there is a manuscript note. He also referred to the letter on page 12 from Provend Services Ltd dated 29th November 1999 referring to a disciplinary hearing held in his absence on 25th November 1999 setting out the fact that a complaint had been received from Comag, and that it had been decided to issue him with a formal final written warning. He pointed out that he had been unable to defend himself, as that sanction had been imposed in his absence. He also referred to the documents on pages 13, 14 15, 16 and, finally, to a passage in the decision of the Employment Appeal Tribunal as to what is required by good industrial relations in respect of investigations at a disciplinary hearing. Finally, Mr Maxham reminded me of the points taken in his grounds of appeal - section 7 of the appeal notice - in which he says the Employment Appeal Tribunal -

" ..... erred in law when concluding that there was no basis for introducing my additional grounds of appeal because Provend never at any time allowed me the courtesy of a reason for summoning me to their hearings. At every juncture it was just me that was summoned e.g. not Michele Buckley who later withdrew her statement.

I had no idea and it was never explained to me that my job was at risk and I had no idea also that I should assume I had a written final warning on my record.

Surely it was up to Provend with all the know how they allegedly possessed to work within the law and allow me the courtesy of a fair hearing.

The whole case was decided in my absence at Provend. I was out of work and in the meantime Provend personnel were travelling up and down the London area inviting people, some of whom I never came in contact with to blacken my name.

Mr Brotherwood tried to seem impartial and reasonable when he took the appeal, but if his juniors e.g. Ms Coad made mistakes in law then he just can't correct these injustices by holding court in his office for two hours.

At the end of the day there was a conspiracy to remove me from my job with Ms Coad and company taking advantage of the fact that my schooling was curtailed at a early age and they tried successfully to get rid of me and they did which has ruined my life and caused me considerable distress.

I ask you to allow my appeal as Provend did not dismiss me legally and Mr Brotherwood can't overrule the law of the land."

10. Mr Maxham also added at various points in his argument that the sort of mistakes made by the employers in the procedure in this case would not have been allowed in a hearing before a Crown Court.
11. I have considered all these arguments. The conclusion which I have reached is that there is no question of law in the grounds of appeal. Mr Maxham is, for reasons I can fully understand, aggrieved by his dismissal. He is not satisfied either with the way the facts were found by the tribunal, nor is he satisfied with the fact that his employers have been excused, in his view, from procedural errors, which they made in the course of his disciplinary proceedings and in the course of the dismissal proceedings. It is, however, the law that if there is a procedural defect that does not necessarily mean that a dismissal is unfair. In particular, the Employment Tribunal were entitled to find that, if there was a procedural fault, as they found there was, in the notifications sent out to Mr Maxham they were cured by the final stage of the dismissal process, namely the full rehearing before Mr Brotherwood which Mr Maxham attended and was given every opportunity to defend himself. There may be procedural errors which make a dismissal unfair, but in this case I have reached the conclusion that the procedural errors committed by Miss Coad were cured by the full rehearing by Mr Brotherwood.
12. In those circumstances the Employment Tribunal was entitled to conclude that the dismissal was a fair one, having held that all aspects of the Burchall test had been satisfied according to the evidence which they accepted.
13. I know that Mr Maxham will be disappointed at the decision that he is unable to take this matter further, but I would not be doing him a service by allowing an appeal to proceed which, in my view, has no real prospect of succeeding because there is no legal error in the decision.
14. The application for permission is therefore refused. I am sorry Mr Maxham, but that is the conclusion I have reached on your points.
Order: Application refused