England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOPYMENT APPEAL TRIBUNAL
UKEAT/053009DM, BAILII: [2010] UKEAT 0530_09_2710

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/03/2011

Lady Justice Smith:

1. This is a renewed application for permission to appeal the decision of the Employment Appeal Tribunal (EAT) dismissing the applicant's claim appeal from the decision of an employment tribunal (ET) which had dismissed his claim for unfair dismissal.
2. The story is an unhappy one. Mr Nunn joined Royal Mail as a postman in 1989 and rose to the position of late shift manager at the Reading Mail Centre, to which he was appointed in 2006. A few months after that appointment, he was suspended from duty and was summoned to a meeting by his line manager Mr Steele, who expressed dissatisfaction with some of Mr Nunn's managerial decisions and performance. Mr Nunn was deeply upset by his treatment at this meeting and went off sick suffering from stress.

An investigatory meeting followed on 6 December 2006. Mr Steele took notes and wrote a report. Mr Willis, to whom Mr Steele reported, concluded that the criticisms of Mr Nunn's conduct and performance should properly be dealt with by counselling. However, both he and Mr Steele were concerned that it appeared to them that Mr Nunn might have given misleading answers at the investigatory meeting. Accordingly disciplinary proceedings were conducted. Six allegations were considered. Mr Willis found Mr Nunn guilty of misleading Mr Steele in three respects and dishonestly misleading him in two respects. He took a particularly serious view of the latter findings and decided to impose a penalty just short of dismissal, namely suspended dismissal and demotion for a period of 5 years. This would result in a salary reduction of about £7,000 per annum.

3. Mr Nunn appealed against that finding and the penalty. His appeal against the findings was dismissed although the penalty was reduced in that the demotion was to last for only two years.
4. Mr Nunn remained aggrieved at his treatment; he felt that he had been treated unfairly. He had been ill at the time of the disciplinary investigation at which he was supposed to have given misleading answers. He had not had access to his records and his memory had been affected by illness. Also, he took the view, whether on advice or not I do not know, that the imposition of demotion was a breach of contract. However he did not resign. He wanted to keep his job and to be restored to his former grade. But at that time, because he did not resign and because he could not sensible claim that he had been discriminated against or victimised, he had no legal remedy. He continued at work and on 20 November 2007 he lodged an internal grievance. This was to be considered by a Mr Wood.
5. Meanwhile, Mr Nunn was being paid at the lower rate. After a while he brought proceedings for unlawful deduction of wages. It appears that he made two (sequential) claims for unlawful deduction of wages, both of which were due to come on for a pre-hearing review on 12 June 2008. On 5 June 2008, Mr Wood rejected Mr Nunn's grievance. On 6 June, Mr Nunn received a letter requiring his presence at a formal interview on 18 June. On 11 June, both claims for unlawful deduction of wages were settled. Mr O'Dair, counsel for Mr Nunn has told me that both claims were paid out in full by Royal Mail. In effect they were conceded. He says that he tried to put that in evidence before the ET but was not permitted to do so.
6. At the interview on 18 June 2008, Mr Willis said that it was clear from the content of his grievance that Mr Nunn had not accepted the decision to demote him. Mr Nunn agreed that he did not accept it; he thought that it was unlawful and unfair. He was warned that if he did not accept the demotion, further disciplinary steps might well be taken which might amount to dismissal. Mr Nunn restated his position.
7. Mr Nunn was summoned to meet Mr Willis on 11 July when he was handed a letter informing him that he was to be dismissed on account of his refusal to accept the demotion imposed in 2007. Mr Nunn appealed internally but his appeal was rejected.
8. Mr Nunn then brought these proceedings for unfair dismissal saying that his dismissal was unfair, in part because he had been victimised for taking proceedings for the recovery of unlawfully deducted wages.
9. The ET held that the reason for the dismissal was Mr Nunn's refusal to accept the decision to demote him. He rejected his allegation that he had been victimised. They found as a fact that Mr Willis had been unaware that Mr Nunn had brought proceedings in the tribunal for the recovery of unlawfully deducted wages. They then considered the fairness of the decision to dismiss. They decided, favourably to Mr Nunn, to they would examine the whole of the evidence including the circumstances of the first disciplinary proceedings. I say that that was favourable to Mr Nunn as they might have taken the view that the earlier proceedings were 'water under the bridge'. But they did not. They came to the conclusion that those proceedings had been fairly conducted and that Mr Willis had been entitled to reach the factual conclusions he had reached, namely that Mr Nunn had deliberately misled Mr Steele. They considered that the sanction imposed, although severe, was within the band of reasonable responses. They were also of the view that the second disciplinary process was fair.
10. The appeal to the EAT failed. In essence the EAT concluded that the EAT had not erred in law and there had been ample evidence on which to base their findings of fact.
11. It is now said that the ET erred and the EAT failed to correct those errors. The findings of fact were perverse. The grounds of appeal and skeleton argument were considered by Mummery LJ on paper but permission to appeal was refused on the ground that the grounds raised only questions of fact not of law and because it is not the function of this Court to retry the facts.
12. I heard oral argument in support of the renewed application on 17 February. My preliminary view was that, although I felt a degree of sympathy with Mr Nunn, there did not appear to be any arguable error of law which could found a successful appeal.
13. In particular, I was of the view that the grounds of appeal which questioned the ET's approach to the issue of victimisation were hopeless. It was said that the ET had misdirected itself in law. However, Mr Nunn's case on victimisation depended upon securing a finding of fact that Mr Willis was aware that Mr Nunn had brought tribunal proceedings. Mr O'Dair had argued that the ET should have been deeply suspicious of Mr Willis's disclaimer, particularly bearing in mind the proximity of the dates of the determination of the grievance, the settlement of the claims and the summons to a further disciplinary interview. I see the potential force of those points but these were issues of fact for the ET and not matters with which the EAT or this court has any business to interfere. There plainly was evidence which the ET had been entitled to accept.
14. Mr O'Dair's other grounds seemed to me to be equally unpromising, save for one possible exception. As part of Ground 2, it was said that the decision to demote Mr Nunn in 2007 had been taken in breach of contract. There was no contractual power to demote. It did not appear to me that this issue had played any great part in the hearing before the ET or indeed on the first appeal. The ET had simply observed that, although the disciplinary code on which the employer had relied (which listed demotion as a possible sanction) was not part of the contract of employment, it had been agreed between the employer and the relevant trade union. However, having been told that the employer had conceded in full its liability to reimburse Mr Nunn for unlawfully deducted wages, it did appear to me possible that there was more in this point than met the eye. If that sanction had been unlawful, it would surely be unfair to dismiss Mr Nunn for refusing to accept its imposition. It seemed possible that the ET had failed to appreciate the force of this point because it had decided not to receive evidence that the wages claims had been conceded in full.
15. I decided to give Mr O'Dair an opportunity to amend his grounds of appeal and to put in a further skeleton argument. This judgment is given in the light of the further material now submitted. Mr O'Dair has now withdrawn the allegation that the sanction of demotion was in breach of contract and unlawful. The new point had nothing in it. The remaining submissions amount to allegations of perversity, which, as I have already said, are hopeless.
16. I repeat that I feel some sympathy for Mr Nunn. On the face of it, he seems to have been unfortunate in his treatment by Royal Mail, given his good record with them and the fact that he was unwell at the time of the meeting at which he was held to have given deliberately misleading answers. But he had a full hearing before the ET; he was represented by experienced counsel; he had the opportunity to call for and deploy documentary material. His case was plainly put. The ET heard and saw the witnesses and it was their assessment of truthfulness and reliability which led to the findings of fact which resulted in the dismissal of his claim. This court cannot interfere with those findings of fact unless they were perverse. They were not. I can detect no arguable error of law and I am unable therefore to grant permission to appeal.