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 Friday, 27th September 2002

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. The application is made by Mr Owusu-Ansah in person. In this judgment I will refer to him as the applicant. He wishes to have permission to appeal against the decision of the Employment Appeal Tribunal at a preliminary hearing on 25th April 2002 dismissing his appeal on the ground that it had no prospect of success, there being, in the view of the appeal tribunal, no error of law by the Employment Tribunal, which heard the complaint of unfair dismissal of the applicant against Woolworths Plc. The Employment Tribunal explained in their extended reasons, which were sent to the parties on 30th July 2001, why they were of the unanimous view that the applicant was fairly dismissed. I have explained to the applicant, who has presented his case in person very clearly and forcefully, that this court has limited powers on appeals of this kind. First, it is only possible to appeal against a decision of an Employment Tribunal on a question of law. It is not possible to have another trial on the facts in an appeal court or appeal tribunal. Secondly, permission to appeal is required and is only granted if the court is satisfied that the appeal has a real prospect of succeeding. There is no point in allowing appeals to go on to a full hearing by the court if they are going to fail for want of any legal point on the original Employment Tribunal decision.
2. Before I deal with the applicant's submissions I must say a little about the events which gave rise to the claim for unfair dismissal made by the applicant in his IT1 form on 20th April 2001. He had worked for a number of years for Woolworths, most recently in the Tooting branch where he was an assistant store manager. In circumstances which I will explain he was summarily dismissed on
3. 5th April 2001 following a disciplinary hearing. In the details on the originating application the applicant stated this:

"I was unfairly dismissed because the disciplinary process was materially flawed. There was insufficient or no evidence to support a finding of gross misconduct. I was not given the opportunity of preparing myself for the disciplinary hearing. Copies of the witness statements were not given to me in advance of the hearing. The fire exit they allege I closed prematurely is located in a restricted area of the shop. I closed it 2 - 4 minutes before closing time for the shop. There is no special drill for locking up the shop which must be adhered to."

4. That is a summary of the applicant's claim for which he sought compensation.
5. The case was contested by Woolworths. The ground on which they resisted the claim was that store managers and assistant managers had legal responsibility for health and safety standards while in charge of the store and that it was important they adhere rigorously to the procedures, rules and disciplines about health and safety. Woolworths regard fire as the most serious health and safety risk it has, and compliance with full fire precautions are communicated as non-negotiable. Failure to comply is viewed as gross misconduct. It was then alleged that on 14th March 2001 the applicant was in charge of the store and prior to the store closing he locked two fire exits on the upper levels of the store. By doing so he had failed to comply with company procedures, which are in place to make sure people can evacuate the building safely. Subsequently he and team members accessed the upper levels after he the exits had been locked, which compromised their safety.
6. The notice of appearance by Woolworths also stated that during two investigatory interviews and a disciplinary interview the applicant admitted that he had locked the fire exit doors early. Details were then given of the disciplinary interview, which led to the decision to dismiss summarily and of the applicant's appeal against that decision in May 2001 to Mr Andy Francis, retail development manager. That appeal was unsuccessful. That is the claim and the defence before the tribunal at the hearing on 17th July 2001 at London South. At the hearing the applicant was represented by counsel and a company representative appeared for Woolworths. The tribunal heard evidence on behalf of Woolworths from Mr Quibell, Miss Warner and Mr Francis. The applicant gave evidence on his own behalf. There was also a considerable number of documents before the tribunal. The tribunal set out their findings of fact in paragraph 3 of their of their decision and summarised the position under Section 98 of the Employment Rights Act 1996 in paragraph 4. They pointed out correctly in paragraph 5 that the tribunal's powers in cases of this kind are restricted:

"It is not a re-hearing of the whole [matter], it is for the tribunal to look at the way in which [Woolworths] carried out the disciplinary process and the decision reached, and it is for [Woolworths] to show the reason for the dismissal, and then it is for the tribunal to be satisfied that it was reasonable to treat that reason as a ground for dismissal."

7. There is no dispute that in this case the reason for dismissal was the applicant's conduct in locking the two fire exit doors prematurely, while people were still in the store, in breach of Woolworths' safety requirements. A conduct reason is a valid reason for dismissal.
8. The tribunal turned to look at the area of the case which has been the main subject of the applicant's submissions today, that is the fairness of the procedure adopted by Woolworths in making the decision to dismiss. Counsel for the applicant had submitted to the tribunal that there were flaws in the procedure. She had contended that the applicant did not know precisely the allegations against him, that there were allegations of victimisation which had not been investigated, that he should have been given copies of witness statements and be allowed to cross-examine witnesses. The tribunal took into account these points, but said the overriding consideration was whether the investigation had been just and fair, and -

"In this case there was no need for a detailed investigation, because the applicant admitted the conduct which formed the basis of his dismissal. Certainly, this tribunal does not consider that the respondents were unreasonable in the way they conducted the [procedures]."

9. The tribunal decided the dismissal was within the band of reasonable responses having regard to the fact that the safety of the customers in large buildings, such as the Woolworths store, is of paramount consideration. The tribunal concluded in paragraph 11:

"This tribunal is unable to say that no reasonable employer would have made the decision which this respondent made. On the contrary the unanimous view of all of this tribunal is that it is a decision on the facts that, indeed they themselves would have made, and it is well within the band of reasonable responses open to an employer."

10. The applicant then appealed to the Employment Appeal Tribunal and, as is the case in this court, the appeal could only succeed if there was an error of law in the decision of the Employment Tribunal. In the judgment of the appeal tribunal, given on its behalf by Mr Justice Wall, it was concluded that there was no error of law in the decision. On the hearing of the appeal the tribunal dealt with the criticisms about the unfairness of the procedure taken before the decision to dismiss. They dealt, in particular, with the criticism about the investigation and a submission that the Employment Tribunal should have considered the circumstances surrounding the admission and not merely have concluded that as there was an admission that was sufficient. There were other criticisms made by Mr Mannan, on behalf of the applicant, about the manner of the investigation. The tribunal concluded that there was insufficient substance in these arguments to allow the appeal to go forward from that preliminary stage to a full hearing. The appeal tribunal concluded that the Employment Tribunal was entitled to find that there had been a breach of the fire regulations, that that was a reason for dismissal which fell within the category of conduct and that it was reasonable for Woolworths to take the decision to dismiss. They went on to say and I quote from paragraph 9:

"In our judgment the tribunal were entitled to make the findings it did as a result of and consequent upon a detailed investigation which is apparent from the number of witnesses that they heard, and where the essential conduct which formed the subject matter of the dismissal was not in dispute. We do not think that any further investigation, if indeed it was necessary, would have altered the result. The tribunal heard three witnesses from the respondents and were plainly satisfied that the disciplinary process had not been conducted unfairly."

11. The applicant wishes to have permission to appeal. He has submitted two bundles of documents, one containing documents relevant to the decisions and the proceedings and another containing further documents, which were consistently used in the hearings below. It contains, among other things, notes kept of interviews at the time, copies of Woolworths' own rules and principles about conduct of disciplinary interviews, a number of photographs of relevant parts of the building and statements of witnesses. The applicant has summarised his arguments in this skeleton argument. During the hearing this afternoon he has emphasised a number of points, on which he bases his application for permission. It is fair to say that he has concentrated on the question of procedural unfairness. He says that there were procedural errors in the disciplinary process and this should have produced a result that he had been unfairly dismissed. He was not given an opportunity to challenge allegations against him. He referred me to page 24 of the second bundle of documents, which is a letter dated 28th March confirming that the applicant was required to attend an investigatory interview at the Tooting store on 22nd March 2001 for the purposes of discussing the allegation that he closed the store to customers early in breach of fire procedures. He was told that he had the right to be accompanied at the meeting by a work colleague of his choice or a union representative. He said that there had been two interviews prior to that date at which he had not been allowed to put his case. He submitted that Woolworths ought to have been more careful in the investigation they had opened into this incident. His case was that, although he had admitted closing the fire exits, that did not involve any breach of the rules. He then criticised the Employment Tribunal for failing to examine in sufficient detail and with sufficient care the process followed for the investigation of the conduct of the applicant. On that point he referred to a number of notes, which were kept at the time of the disciplinary procedure on pages 9 and 12 of the second bundle, pointing out certain discrepancies in the notes from the original allegations. He said that the Employment Tribunal and the Employment Appeal Tribunal had failed to take into account these procedural errors, in particular, they had failed to take into account the complaint that he had been victimised and unable to present a proper case.
12. The applicant made it clear that his real concern about this decision is that it will stand, unless reversed by this court, as an unsatisfactory precedent for cases of this kind. He accepts that the Employment Tribunal, the Employment Appeal Tribunal and this court are unable to substitute their own views for the decision made by the employer. What they should do is to examine more carefully the procedure, which led to the decision to dismiss. On this point the applicant referred to Woolworths' own rules which, he submitted, formed part of his contract governing the conduct of disciplinary interviews. There are provisions which state that before a disciplinary interview there must be careful preparation and it must be ensured that a full investigative interview is conducted to establish all the facts. In particular, the employee must be told of the complaint and that he is required to attend a disciplinary interview. He must be given sufficient time to prepare the response to the allegation against him, the investigation should ensure that all relevant facts are available and, where appropriate, statements from witnesses obtained. The employee should be provided with a copy of any statements which have been taken. The applicant submitted that in this case those principles of fairness were not observed; he was not supplied with information he should have been and he was not given time to deal with the offence; he was not supplied with witness statements; he says it was no excuse for the investigation to be carried out in this unsatisfactory way, that he had admitted closing the fire exits. It still required a full investigation. He also raised the question of inconsistent treatment of him.
13. I have taken into account all these points which were clearly and carefully made by the applicant. I can well understand why he feels aggrieved by what has happened. However, I have to return to the point which I made at the beginning of this judgment. I am not conducting the hearing - which Woolworths should have conducted on the applicant's submissions - to decide whether all the facts were fairly brought out before a decision was made. I am not conducting the hearing of the tribunal, hearing evidence from witnesses about the procedure for dismissal. This is an appeal court which only has power to interfere with the decision of the Employment Tribunal if there is a legal error. It may be that in some respects the investigation into what had happened could have been more fully conducted. That is very much a matter of judgment for the employer at the time. The employer's investigation is satisfactory if it complies with the principles which have been laid down in cases of unfair dismissal for misconduct. Those principles are that an investigation must be carried out for the employer to be able to say that he has an honest belief, and has reasonable grounds for believing, that the employee has conducted himself in a way that justifies dismissal. If he has made a reasonable investigation in all the circumstances and formed that belief on reasonable grounds, then a dismissal is fair if it is within what is described in the cases as the band of reasonable responses. In this case I would agree with the applicant that an investigation may be required about conduct even if the conduct is admitted. It may be necessary for an employer to establish what all the circumstances are relating to the conduct which forms the basis of the decision to dismiss. It is a question of degree and very much one of the judgment of the employer as to what degree of investigation is necessary, how many witnesses need to be considered and in what kind of detail the matter needs to be examined.
14. In this case the Employment Tribunal was satisfied that a detailed investigation was not needed. It appears that Woolworths did hold an investigation. It was not a case of simply making a decision to dismiss when the applicant made his submission. There were investigatory interviews. There was a hearing which he attended and then there was an appeal. I think that the Employment Tribunal was entitled to conclude in its decision that Woolworths were not unreasonable in the way they conducted the disciplinary process, even if it was possible to do it more thoroughly.
15. What I am concerned with is whether what was done was sufficient in law for the employer to be able to say that he has satisfied the test laid down in Burchall, the case which still governs dismissal for conduct cases. For those reasons, while fully understanding that this decision may upset the applicant I have reached the conclusion that the proposed appeal has no real prospect of success. There is no real prospect of establishing that the decision of the Employment Tribunal was flawed by a legal error. The tribunal applied the right test and was entitled to reach the conclusions it did on the basis of the evidence it heard and the documents put before it.
Order: Application refused