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 THE E.A.T
(MR JUSTICE ELIAS)

		Royal Courts of Justice Strand London, WC2
		16th June 2004

1. LORD JUSTICE MUMMERY: This is an appeal by Mr Roberts. He appeals against the decision of the Employment Appeal Tribunal in the judgment given by Elias J on 24th July 2003. The Appeal Tribunal dismissed the appeal by Mr Roberts from the decision of the Employment Tribunal, which had heard Mr Roberts' claim against his employers, West Coast Trains Limited, for unfair dismissal over a number of days in September 2002 and February 2003. In their extended reasons, which were sent to the parties on 20th February 2003, the Employment Tribunal unanimously decided that Mr Roberts was not dismissed, and therefore was not unfairly dismissed.
2. Permission to appeal to this court was granted by Pill LJ on 16th December 2003. He expressed the view that it was arguable, on the disciplinary procedure followed, that there was a dismissal of Mr Roberts on 6th November 2001. He also directed that, for the purposes of the substantive hearing, further documents should be supplied to the court.
3. In order to decide this appeal, it is important to focus on the question before the Employment Tribunal -- was Mr Roberts dismissed? -- bearing in mind the restrictions on appeals from an Employment Tribunal deciding an unfair dismissal case. There is no appeal on questions of fact. An appeal is only permissible on a question of law, which arises from the decision of, or in proceedings before, an Employment Tribunal.
4. The background to this case is that Mr Roberts had been employed for many years as a chef by West Coast Trains Limited and their predecessors. His employment began on 27th June 1975. The dispute has arisen between him and West Coast Trains because, following a disciplinary hearing for alleged misconduct, he was dismissed on 6th November 2001. In consequence of the disciplinary hearing, at which it was decided that he should be dismissed, and a notification by letter, Mr Roberts launched an appeal against the decision. Before the outcome of that appeal was known, he started proceedings in the Employment Tribunal claiming unfair dismissal.
5. His ET1 form of application to the Tribunal claimed unfair dismissal from his employment as a chef. It gave the dates of his employment as 27th June 1975 to 6th November 2001. His originating application had attached to it a document, setting out his account of the relevant facts. Those facts included this statement:

"On 7th November 2001 the applicant received a letter from the respondent confirming that he was dismissed with effect from 6th November 2001. He was informed that he had a right to appeal against this decision, which should be put in writing within seven days of the date of his hearing stating the grounds of his appeal."

It went on in paragraph 18 to allege:

"By letter dated 8th November 2001 the applicant stated that he wished to appeal against the decision of the hearing though since the letter of termination had failed to give any reasons he was unable to base his appeal on any grounds. He asked to be sent a copy of Clause 9 of the respondent's Disciplinary Procedures, the grounds upon which the decision to dismiss was based.

(19) To date the applicant is yet to receive a copy of Clause 9 of the respondent's Disciplinary Procedures."

There is no reference in the document to the outcome of the appeal. That originating application was dated 4th February 2002. It was received by the Employment Tribunal on 5th February 2002.

6. On 6th February 2002, the internal appeal hearing took place. The appeal had not been withdrawn at any time by Mr Roberts. On 8th February 2002 Mr Roberts was sent the following letter by Virgin Trains (the trading name of West Coast Trains Limited):

"Dear Mr Roberts,

Appeal Decision.

With reference to the disciplinary action taken against you on 6th November 2001 I am writing to confirm the outcome of the appeal hearing held on 6th February 2002 that the decision is to reduce the punishment of dismissal to one of reduction in grade to Customer Service Assistant on Board at Euston.

The period between 06.11.01 and 06.02.02 will be treated as suspension without pay.

The Final Warning will state that 'If you are involved in any future instances resulting in disciplinary action then it will result in your dismissal'.

I note that you have requested leave until Monday 11th February but please contact the Service Centre on Friday to sort out your roster."

The letter was signed on behalf of the Board Service Manager.

7. Mr Roberts responded to that letter on 13th February as follows:

"With reference to our conversation of Thursday 7th February 2002 [it was a telephone conversation] following the disciplinary hearing held on 6th February 2002. I stated in that conversation that I would need some time to discuss the new position with my wife. In addition, I also stated the possibility of returning to work once I received my new employee contract. However, I am still awaiting the disciplinary meeting notes from 6th February 2002. When I receive all the relevant information, I will give you my decision about my future employment.

I am sure that you can appreciate that this is a stressful time, and in view of this my Doctor has indicated that I need some time to recuperate. I will inform you of any further changes to my state of health."

Another letter was sent to Mr Roberts from the Employee Relations Officer, Mr Austin, misdated 1st February -- the correct date is 13th February 2002 -- saying:

"Further to your telephone call on Thursday 7th February 2002 I enclose a copy of the Disciplinary Procedure and a standard contract of employment as requested.

I will forward to you a copy of the hearing notes once they have been completed.

During the conversation I confirmed that you had been reinstated at the appeal hearing and that if you no longer wished to be employed by the company then you need to submit a letter of resignation.

I note that you have not reported for duty on Monday or Tuesday 12th and 13th February and must advise you that you will be regarded as absent. If your absence continues, then you will be dealt with in accordance with the company procedures.

If you have any queries please do not hesitate to contact me."

Sick notes were then submitted by Mr Roberts, one of them dated 14th February, another 15th February, and another 22nd February. The position was that Mr Roberts never returned to work. Ultimately, by August 2002 he was treated by West Coast Trains Limited as having resigned.

8. He pursued his claim for unfair dismissal. The preliminary issue at the hearing before the Employment Tribunal in September 2002 was whether Mr Roberts had been dismissed at all. If he had not been dismissed, he could not claim that he had been unfairly dismissed. If he had not been dismissed, there was no case over which the Employment Tribunal would have jurisdiction.
9. The only question on this appeal is whether Mr Roberts was dismissed, when the employer's initial decision to dismiss him in November 2001 was supplanted in February 2002 by an internal appeal decision, substituting for the sanction of dismissal for misconduct, the sanction of a reduction in his grade. Mr Roberts contends that he was dismissed, as is clear from the letter of notification following the disciplinary hearing. At the time when he started his Employment Tribunal proceedings he was still dismissed. That is, he says, determinative of his right to claim unfair dismissal in an Employment Tribunal.
10. For West Coast Trains Limited it is accepted that its initial decision was to dismiss him but, in accordance with the provisions of his contract relating to disciplinary procedures and appeals against disciplinary decisions, Mr Roberts had launched an appeal. He had pursued that appeal. The decision on appeal was one taken within the terms of his contract, namely that an alternative sanction for misconduct was reduction in grade. The effect of that decision was to resurrect his contract of employment, so that even though it had been terminated as at the date when the Employment Tribunal proceedings were instituted, it had been revived by the time that the Employment Tribunal proceedings had come to a hearing. Therefore, he had continued to be employed, even though he had never returned to work.
11. I now turn to the more detailed arguments. It will be necessary to say a little bit more about the circumstances leading to the initial decision to dismiss. The Tribunal set out detailed findings of fact in paragraph 4 of the extended reasons. The essential facts are these. Mr Roberts had been employed as a chef. On 27th September 2001 he was the senior member of the catering crew on the 8.30 am train from Euston to Glasgow, which returned at 21.00 hours on the same day. Mr Roberts's duties included keeping records of stock issued and returned. When a security check was made on food and drink issued from the kitchen area of the train, certain items were found in the bag of the Onboard Service Supervisor. The Service Supervisor, not Mr Roberts, resigned. Other staff were disciplined and dismissed.
12. Mr Roberts was called in for an investigating interview. The Tribunal found that he was not cooperative. He was charged with being complicit in the theft of the items by the Service Supervisor. Mr Roberts was suspended pending the outcome of disciplinary proceedings, the hearing of which took place on 6th November 2001. After that hearing he was told of the decision to dismiss him. That was confirmed in writing. The letter of 7th November 2001 from the Customer Service Manager, headed "Self: Disciplinary Procedure" stated:

"Dear Mr Roberts,

I am writing to confirm the decision advised to you at the conclusion of the Clause 9 Disciplinary Hearing held on 6th November 2001 that you are dismissed from the employment of West Coast Trains Limited with effect from 6th November 2001."

The letter went on to say that he had a right of appeal against that decision, which must be submitted in writing within seven days from the date of the hearing, clearly stating the grounds of his appeal. He was informed of the right to be represented by a spokesperson, who should be either a fellow employee of West Coast Trains Limited or a representative of a trade union recognised by West Coast Trains.

13. On 8th November Mr Roberts gave notice of his intention to appeal. The appeal hearing did not take place until 6th February 2002. The delay was in part caused by an adjournment of the an earlier hearing fixed for December 2001. The adjournment was at the request of Mr Roberts. His penalty of dismissal was reduced on appeal to demotion to Customer Service Assistant and to the treatment of the period between his dismissal and his demotion as a period of suspension without pay. A final written warning which was also included in the decision letter on the appeal. Mr Roberts did not return to work. He went on leave and then on sick leave. He did not send any letter of resignation. Ultimately a letter was sent by West Coast Trains, saying that his employment would be treated as terminated by resignation from effect of August 2001.
14. The Employment Tribunal then referred, in two paragraphs, to the law relating to dismissal for misconduct, citing two authorities on the issue of whether a person has been dismissed when that person has exercised a right to appeal against a dismissal in accordance with an agreed procedure. The two cases are J Sainsbury v Savage [1981] ICR 1, a Court of Appeal decision, and BBC v Beckett [1983] IRLR 443, an EAT decision.
15. Miss Tether, appearing for West Coast Trains, contends that the beginning and end of this case is in the concluding paragraphs 7(i) and (ii) of the extended reasons. She submits that they contain a finding of fact reached without any legal misdirection on the part of the Tribunal. Paragraph 7 states:

"On the basis of our findings of relevant fact, and applying the appropriate law, the Tribunal has reached the following conclusions:

(i) The applicant was not dismissed by the respondent.

(ii) His contract of employment provided for an appeal process, and allowed disciplinary sanctions of suspension without pay and demotion. This is what happened in this case, and he was demoted in accordance with his existing contract of employment. No new contract was entered into when he was demoted to the position of customer services assistant. It is difficult to distinguish this case from the case of Beckett, and in accordance with the case of Savage we find that he was successful on his appeal against his dismissal and therefore his employment continued."

The Tribunal went on to consider what they would have concluded on the question of unfair dismissal, if they had found that he had been dismissed. The claim failed. No remedy hearing was required.

16. On this appeal we have been provided with the documents containing the disciplinary procedures. They are clearly among the contractual documents governing the employment relationship between Mr Roberts and West Coast Trains Limited. The disciplinary procedures are contained in a document which is appended to all contracts of employment. The rules are applicable to all employees. Paragraph 16 states:

"(16.1) If charged with any disciplinary offence you will be given a hearing at which you can state your case. You may be suspended from work during investigations prior to the hearing [that happened in this case]. After the hearing, if the charge is proved, InterCity West Coast Limited may --

• dismiss you without notice

or

• suspend you from work for a defined period

and/or

• reduce you in grade

and/or

• transfer you to another post or location (which may reduce you in grade)

and/or

• suspend of limit your travel facilities."

The consequences of suspension are then spelt out.

17. There is an annex to the Procedure Agreement (the Disciplinary Procedure) providing for a right of appeal to the appropriate superior officer of InterCity West Coast Limited against the punishment to be inflicted and/or the interpretation of the facts of the case. The officer hearing the appeal must not be the officer who has adjudged the case or decided the punishment in the first instance. Provisions are made for the requirement that the appeal must be made within seven days and heard as soon as possible. It is provided that the punishment, against which an employee is appealing, will not be increased at the appeal stage. There are provisions about representation and assistance from others at the hearing of the appeal. It is specifically mentioned that the types of recordable punishment include reduction in grade, as well as dismissal, and other lesser punishments such as reprimand and suspension.
18. The Disciplinary Procedure, the Appeal Procedure, and the sanctions, which could be imposed both at first instance and on the appeal, were contractual documents. They included both dismissal as a sanction and reduction in grade as a sanction.
19. Mr Roberts was dissatisfied with the decision, particularly as the Tribunal had indicated that, if they had found that Mr Roberts had been dismissed, they would have gone on to find that he had been unfairly dismissed outside the band of reasonable responses of an employer. A great deal turns, so far as Mr Roberts is concerned, on this preliminary issue whether he was dismissed or not. He appealed on that question to the Employment Appeal Tribunal. The Employment Appeal Tribunal came to the conclusion that there was no question of law arising from the decision of the Employment Tribunal.
20. The decision of the Appeal Tribunal, contained in the judgment given by Elias J on its behalf, is so comprehensive and so careful that there is difficulty improving upon it. Elias J considered all of the arguments put forward by Mr Clement on behalf of Mr Roberts. After dealing with the hearing before the Employment Tribunal, he dealt with the relevant authorities, in particular Savage and Beckett. He gave reasoned responses to the points on which Mr Clement sought to establish Mr Roberts' appeal.
21. The appeal was dismissed, because the Appeal Tribunal accepted Miss Tether's arguments and rejected the claim that Mr Roberts's employment was terminated. It was common ground in the Appeal Tribunal, as it is here, that the imposition of the sanction of demotion and the imposition of the period of suspension without pay was specifically provided for in the agreed Disciplinary Procedures. The Appeal Tribunal held that demotion on the decision of the appeal body did not involve termination of the existing contract, or the entering into of a new contract between Mr Roberts and West Coast Trains. It is important to highlight that point because one of the arguments put forward by Mr Clement on this appeal was that there was an offer of re-engagement following the hearing of the appeal. He argued that the offer of re-engagement did not nullify the earlier decision to dismiss.
22. It was held by the Appeal Tribunal, correctly in my view, that the decision on the internal appeal was not a matter of creating a new contract for a new position: it was a question of giving effect to a decision to apply a different sanction on appeal than had been applied at first instance. The sanction applied on appeal was one specified in the existing contract. Within that existing contract it was possible to demote Mr Roberts without terminating his existing contract and without making an offer to enter into another contract re-engaging him into a different position.
23. The Employment Appeal Tribunal also dealt with another submission made, and repeated by Mr Clement in this court, that the jurisdiction of the Employment Tribunal to hear the claim of unfair dismissal was established at the moment when the application making the complaint of unfair dismissal was presented to the Employment Tribunal. Mr Clement's submission was that, at the date when the complaint was filed with the Employment Tribunal, on 5th February 2002, Mr Roberts was still dismissed, as notified in the letter of 8th November 2001. Nothing done by the internal appeal body altered that position at that date. He submitted that it was not relevant for the Employment Tribunal to consider what had happened after the issue of the complaint. The Employment Appeal Tribunal came to the conclusion that the decision of the appeal body had retrospective effect, so that Mr Roberts was to be treated, in the light of its decision to demote him, as if he never had been dismissed in November 2001. The fact that an ET1 complaint form had been lodged between the initial dismissal and the subsequent demotion on the appeal decision was an irrelevant factor, either in deciding whether or not he was dismissed for the purposes of an unfair dismissal claim, or whether the Employment Tribunal had jurisdiction to entertain the claim.
24. I agree with everything that was said by the Employment Appeal Tribunal in their decision rejecting the appeal by Mr Roberts. It follows that I would dismiss this appeal. There was no error of law in the Employment Tribunal's decision that Mr Roberts was not dismissed, so as to entitle him to pursue a complaint of unfair dismissal in the Employment Tribunal after the outcome of his internal appeal was notified in February 2002. I agree with the submissions on behalf of West Coast Trains Limited by Miss Tether. I would simply highlight the following points:

(1) The employment contract of Mr Roberts included provisions in the staff handbook, in the Onboard Terms and Conditions and in the Procedure Agreement, which entitled West Coast Trains to impose a range of sanctions when disciplining an employee for misconduct. That range could be imposed either at first instance or on an appeal brought by an employee, who was dissatisfied by the first instance decision.

(2) The range of sanction included dismissal. That was the sanction imposed at first instance and was effective at the date when Mr Roberts presented his complaint of unfair dismissal to the Tribunal.

(3) The range also included reduction in grade or demotion. That was the decision ultimately taken on Mr Roberts's appeal.

(4) The outcome of the appeal procedure initiated by Mr Roberts, and not withdrawn by him before the completion of the appeal procedure, was that the decision to dismiss should be replaced by a decision to demote.

(5) The terms of Mr Roberts' employment contract permitted West Coast Trains to impose such a sanction in place of the earlier decision to dismiss, so that they could retrospectively achieve a position where he was not dismissed for the purposes of bringing an unfair dismissal claim.

(6) It was within the terms of that contract that the appeal decision was taken. It was not necessary to effect an express reinstatement to the position of chef previously held by him, nor was it necessary to make an offer to him to enter into a new contract in order to continue Mr Roberts' contract of employment.

25. In my view, there was a misunderstanding on the part of Mr Roberts in thinking that, when he received the notification of the appeal decision, he was being made an offer, which he could accept or reject. What was being notified to him, as was made clear in a later letter, was the continuation of the contract. He acted as if the contract was being continued when sick notes were submitted by him after the date of the appeal decision.
26. In summary, the effect of the decision on the appeal was to revive the contract of employment terminated by the earlier decision to dismiss. That was something which Mr Roberts had agreed could be done by West Coast Trains, as employer, as part of the disciplinary process, including the appeal procedure which he himself had initiated.
27. The fact that he had made a complaint of unfair dismissal to the Tribunal at a date when he was still in a state of dismissal, and before the appeal had been heard, does not affect the legal position. It is legally irrelevant. It would have been relevant, if he had never instituted an appeal and/or if he had instituted an appeal, he had withdrawn his appeal before a decision was made. In such circumstances, the initial dismissal would have stood. I am unable to accept the submission made by Mr Clement that somehow the date of the issue of the proceedings freezes the position on jurisdiction, and that it is not permissible for the Employment Tribunal to look at the real world as it existed at the date when the case came on before them at the hearing.
28. All the points that I have dealt with turn on the particular contract in this case, and on the particular facts relating to the decision on dismissal and the subsequent decision on appeal. In my judgment, relatively little assistance is to be gained, in the decision on this appeal, from looking at decisions in other cases and comparing what happened in those cases with what happened in this case. I agree with the comments of Roskill LJ in the case of Sainsbury v Savage, which I have cited earlier, in which he said at page 7 of [1981] ICR 1, between G and H:

"There is a danger (arising from the multiplicity of reports) in these industrial tribunal cases which are decided upon their own facts, for the tribunal of fact to ask itself: 'Is this case like that case?' That is not the right approach. The right approach is first to find the facts -- that is the function of the tribunal of fact -- and then, having found those facts, to apply to them legal principles which are very clear so far as the present case is concerned."

I say, with respect, that Mr Clement in his skeleton argument has devoted too much of his argument to comparing this case with the decisions of the cases of Savage and Beckett. It is not the most profitable way of pressing the argument that his client had been dismissed.

29. I would add that the decision of the Employment Tribunal and the Employment Appeal Tribunal, is consistent with general principles in so far as they were laid down by the House of Lords in the case of West Midlands Co-operative Society Limited V Tipton [1996] ICR 192. Miss Tether cited two passages which support the conclusion in this case as a matter of principle. I refer, first, to what is said at page 198E to H where Lord Bridge agreed with what had been said by Brightman LJ in the case of Savage, approving the judgment of the Appeal Tribunal. It states:

"In our view, when a notice of immediate dismissal is given, the dismissal takes immediate effect. The provisions of this contract as to the appeal procedure continue to apply. If an appeal is entered, then the dismissed employee is to be treated as being 'suspended' without pay during the determination of his appeal, in the sense that if the appeal is successful then he is reinstated and he will receive full back pay for the period of the suspension. If the appeal is not successful and it is decided that the original decision of instant dismissal was right and is affirmed, then the dismissal takes effect on the original date. In our view, that is the date on which the termination takes effect for the purposes of the Act."

There is a further passage on page 202A-E:

"But there is nothing to mitigate the injustice to an employee which would result if he were unable to complain that his employer, though acting reasonably on the facts known to him when he summarily dismissed the employee, acted quite unreasonably in maintaining his decision to dismiss in the face of mitigating circumstances established in the course of the domestic appeal procedure which a reasonable employer would have treated as sufficient to excuse the employee's offence on which the employer's real reason for the dismissal depended. Adopting the analysis which found favour in J Sainsbury Ltd v Savage [1981] ICR 1, if the domestic appeal succeeds the employee is reinstated with retrospective effect; if it fails the summary dismissal takes effect from the original date. Thus, in so far as the original dismissal and the decision on the domestic appeal are governed by the same consideration, the real reason for dismissal, there is no reason to treat the effective date of termination as a watershed which separates the one process from the other. 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 to consider only one half of the process in determining whether the employer acted reasonably or unreasonably in treating his real reason for dismissal as sufficient is to introduce an unnecessary artificiality into proceedings on a claim of unfair dismissal calculated to defeat, rather than accord with, the 'equity and the substantial merits of the case' and for which the language of the statute affords no warrant."

30. Although Mr Clement rightly points out that those remarks were made in a different context than the issue of whether or not there had been unfair dismissal, I find that the House of Lords has approved the essential reasoning of the decision in Sainsbury v Savage setting out the general principles applicable to the issue before the Employment Tribunal in this case.
31. There is a further citation which, in my view, shows that the decision of the Tribunal is consistent with general legal principle and with common sense. I cite from Brightman LJ's judgment in Sainsbury v Savage [1981] ICR 1, page 7 A-B, where he refers to a sixth submission made to the court in that case:

" . . . that if the contract ceased during the period of suspension, should the employee lose the appeal, it must likewise cease if the appeal succeeded so that the odd position would arise that a successful employee who won his appeal could claim compensation on the basis that he had been wrongly dismissed notwithstanding that the clause in question required him to be reinstated. That is an Alice in Wonderland proposition which, with due respect to counsel, is beyond my comprehension."

32. In my judgment, this appeal should be dismissed. The main point made by Mr Clement as to the effect of starting the Tribunal proceedings between the date of notice of dismissal and the date of the notice of the result of the internal appeal is irrelevant to determining the issue of whether or not Mr Roberts had been dismissed. His other submission relating to an offer of re-engagement being contained in the appeal decision is not a proper analysis of the decision taken on the appeal. The decision taken on the appeal was not to offer Mr Roberts a new contract, which he could decide whether or not to accept. It was all within the terms of the existing contract, under which West Coast Trains were entitled, on an appeal procedure, to quash an earlier decision to dismiss and to reinstate the contract, which had been terminated, by substituting a demotion of grade in accordance with the sanctions set out in the Disciplinary Procedure.
33. The Employment Tribunal and Employment Appeal Tribunal reached the correct decision. I would dismiss the appeal.
34. LADY JUSTICE ARDEN: I agree. The appellant's demotion was not a dismissal and the decision of the appeal process of the respondent, made pursuant to the appellant's contract with the respondent, to demote the appellant, resulted in the continuation of the original contract of employment. That is the normal result of an internal appeal procedure unless the contract otherwise expressly provides (see per Lord Bridge in West Midlands Co-operative Society Ltd v Tipton [1986] ICR 192, 198). The other members of the House agreed with Lord Bridge.
35. As Miss Melanie Tether for the respondent points out, there was nothing to prevent the appellant from complaining of constructive dismissal when he learned of the decision on appeal to substitute demotion. He did not take this course but the possibility was available to him to ask the Tribunal whether demotion was available to the respondent under his contract. I too would dismiss this appeal.
36. MR JUSTICE GAGE: I agree with both judges.

Order: Appeal dismissed. Appellant to pay Respondent's costs.