England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE SHANKS)

		Royal Courts of Justice Strand London, WC2
		17 October 2013

1. LORD JUSTICE FLOYD: The appellant, Ms Bola Adegbola, appeals from the decision of HHJ Shanks sitting in the Employment Appeal Tribunal dismissing her appeal from the Employment Tribunal (Employment Judges Silverman, Mann and Leberton) which in turn dismissed her claim for unfair dismissal and for unpaid wages.
2. HHJ Shanks' decision was taken at a hearing pursuant to rule 3(10) of the Employment Appeal Tribunal Rules 1993 after an earlier decision on the papers under rule 3(7). That decision was that her appeal failed to raise any arguable error of law. Permission to appeal to this court was initially refused on the papers by Lord Justice Mummery but given at a subsequent oral hearing by Sir Stephen Sedley.
3. The appellant was employed by the respondent Marks and Spencer PLC as a customer assistant at its Wimbledon store from December of 2007. She was dismissed on the grounds of gross misconduct on 15 November 2011.
4. On 21 July 2010, the appellant was alleged to have been involved in an incident with another member of staff. There followed an investigation and disciplinary hearing following which she was issued with a final written warning explaining that further acts of misconduct could result in her dismissal. Although she sought to appeal from the final written warning, she lodged her appeal out of time and the respondent declined to hear it.
5. Three months after the incident in July, on 21 October 2010, the appellant was involved in an argument with a manager during which she raised her voice and displayed aggressive behaviour. A Ms Stevens was asked to investigate the matter. Before that investigation by Ms Stevens was complete, the respondent was notified that on 25 October 2010 a person who later turned out to be the appellant's sister-in-law was seeking to reclaim VAT on items purchased with the appellant's store discount card. Ms Stevens was asked to include this matter as well within her investigation.
6. Ms Stevens interviewed the appellant about both incidents on 27 and 29 October. She made a written record of the interview in note form which the appellant signed on each page at the time as accurate, but later sought to challenge both within the internal procedures of the respondent and before the Employment Tribunal. Ms Stevens concluded from the interviews with the claimant which she held that there was a case for the appellant to answer in relation to the first incident of aggressive behaviour. In relation to the second incident, the discount card matter, she concluded that, although no charge should be made in relation to the attempt to reclaim VAT, there was basis, as a result of information volunteered by the appellant during her interviews, for concluding that the appellant had purchased goods with the card for resale contrary to the terms on which such cards are to be used by employees.
7. There followed on 15 November 2010 a disciplinary hearing conducted by a Ms McEllrgoft. The appellant had been properly informed before the hearing of the two charges made against her. Although the appellant had denied that she had bought goods to resell, she was unable to explain why she had signed the notes of the interview with Ms Stevens recording that fact as correct. Ms McEllrgoft accordingly concluded that there were reasonable grounds for believing that the claimant had been disrespectful, that is to say the first incident, and had resold goods bought with her discount card, that is to say the second incident, the latter being classed as gross misconduct. She decided the sanction for such conduct should be dismissal.
8. Ms Stevens and Ms McEllrgoft both worked at the Wimbledon branch and both had been involved in the previous disciplinary hearing which led to the first written warning in July.
9. The claimant appealed. Her appeal was heard by a Ms Marsland on 15 December 2010. Her case was summarised by the Employment Tribunal in the following terms:

"The claimant appealed a decision to dismiss on eight grounds. She disputed the accuracy of the investigation and disciplinary hearing notes. She considered it unfair that she had made a complaint against a colleague but that she, the claimant, had been dismissed. She thought the decision to dismiss was full of suppositions and assumptions. She said she did not abuse the use of her discount card. She asserted that she was being picked on and victimised by a named colleague and that she was being stereotyped and prejudiced by two named staff members. She maintained she had underlying health problems for which the respondent had failed to make adjustments and that the store manager had not been supportive of her."

10. Following the appeal hearing, Ms Marsland made further investigations prior to compiling her report in which she decided to uphold the decision to dismiss the appellant. The fact that investigations were conducted after the appeal hearing on which Ms Adegbola had no opportunity to comment led Sir Stephen Sedley to grant permission for this further appeal.
11. The Tribunal considered that it would have been better practice for the respondent to have appointed people other than Ms Stevens and Ms McEllrgoft to conduct the investigation and the hearing. However, at paragraph 33, the Tribunal said this:

"Even if separate people had dealt with the incidents which led to the claimant's dismissal, the result would undoubtedly have been the same, ie dismissal, because of the claimant's volunteered admissions in relation to the misuse of her staff discount card and the presence of the extant final written warning."

They went on to say this at paragraph 34:

"Further, Ms Marsland, who heard the claimant's appeal, was not only independent of the claimant but also carried out an extensive investigation after the appeal hearing and before confirming her decision to dismiss. The Tribunal considers that Ms Marsland's conduct of the appeal hearing and later investigation would have cured any possible defect in the earlier procedure."

The Tribunal accordingly dismissed the appellant's claim.

12. HHJ Peter Clark rejected the appellant's appeal on paper on 7 February 2012. On 5 March, the appellant wrote reiterating her desire to appeal. This letter was treated as an application for a hearing under rule 3(10) of the rules. Thereafter, the appellant instructed solicitors to appear on her behalf at the hearing. Notice of that hearing, which was set for 16 July, were sent to her solicitors on 18 April. On 12 July, the solicitors for the appellant applied by fax for an adjournment which was refused by HHJ Shanks. The matter then came before the judge on 16 July. The solicitors did not attend and the appellant acted in person.
13. There are three grounds of appeal which are contained in the grounds of appeal. The first is that the judge should not have refused the appellant an adjournment. That ground, as Mr Stephenson, who has appeared this morning on behalf of the appellant, very fairly recognises, does not give rise to an independent ground of appeal. He places his appeal firmly in his second and third grounds. He recognises that, if we do not consider either of those ground to be arguable, then there would have been no purpose in the Appeal Tribunal granting the requested adjournment. On the other hand, if we do think that there is something in those grounds, then the matter will be remitted either to the Appeal Tribunal or to the Employment Tribunal as we direct.
14. I turn therefore to the second ground, which is that there was a breach of natural justice because the Employment Appeal Tribunal overlooked a reasonably arguable point of law, namely that the internal appeal procedure by Ms Marsland involved investigations which were irregular, and then to the third ground, which is that the Employment Appeal Tribunal overlooked another point of law in that they wrongly considered that it had no jurisdiction to investigate the earlier first written warning.
15. In support of the second ground, Mr Stephenson submits that the appeal procedure was procedurally unfair. He relies on what was said by the Employment Appeal Tribunal in British Home Stores Limited v Burchell [1980] ICR 303 by Arnold J. At page 304C to E, Arnold J said this:

"What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case."

16. The respondent submits that what occurred in the appeal procedure is not relevant. They accept, of course, as this court has held, for example in Taylor v OCS Group [2006] ICR 1602, that the task of the Tribunal is to look at the process as a whole, bearing in mind the focus on section 98 of the Act. However, the respondent submits that anyone faced with the volunteered admissions in relation to the use of the staff discount card would have reached the same conclusion and, in paragraph 33 of the Employment Tribunal judgment which I have already read, the Tribunal expressly so held. The fact that the appellant had signed those notes was inescapable and gave rise to reasonable grounds for believing that the contents of those notes was true.
17. The Tribunal's reference to the appeal hearing was only made on the assumption that there was in fact some material procedural unfairness in the first stage. As there was none, the discussion about the fairness of the appeal is academic.
18. On this ground, I consider that the respondent is right. The argument is not one which was run before the Tribunal but, as Mr Stephenson points out, the Tribunal has a duty to investigate the fairness of the procedure overall. But in the present case it seems to me that the appeal procedure need not be considered. There was the clearest possible evidence which was considered by the disciplinary tribunal that there was a basis for this dismissal. Nothing which occurred subsequently can render that decision unreasonable or unfair. So, although the argument was not run, for the reasons given by respondent, it is not an argument which would have assisted the appellant in any event.
19. I turn therefore to the third ground of appeal, namely that the Tribunal was wrong to decline to enter into a consideration of whether the first written warning was rightly administered.
20. The Tribunal expressed itself in paragraph 11 of its decision in this way:

"A part of the claimant's case in the present proceedings was based upon her assertion that the final written warning issued on 21 July 2010 was unfair. The Tribunal had no jurisdiction to reopen that incident and decline the claimant's invitation to investigate it."

21. Strictly, if taken entirely at face value, the proposition that the Tribunal does not have jurisdiction to entertain an investigation into a written warning is incorrect. As Mr Stephenson has pointed out, in Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 135, Mummery LJ pointed out that it is not the function of the Tribunal to sit in judgment upon the substantive matters on which the written warning is based but they do need to be satisfied that the final warning is issued in good faith. In paragraph 20 in that case, Mummery LJ added:

"As for the authorities cited on final warnings, Elias LJ observed, when granting permission to appeal, that the essential principle laid down in them is that it is legitimate for an employer to rely on a final warning, provided that it was issued in good faith, that there were at least prima facie grounds for imposing it and that it must not have been manifestly inappropriate to issue it."

22. I can deal with this ground quite shortly. The Tribunal found that the appellant could have been dismissed for the discount card incident alone without consideration of the second offence or the first written warning (see paragraph 30 of their decision). They so found because the discount card offence amounted to gross misconduct. It is therefore not in my view necessary for us to review the authorities as to the extent to which the court or tribunal should investigate the merits of the first written warning. I should add, however, that I was satisfied by the submissions made by Mr Knight on behalf of the respondent that the Tribunal must have considered the question of good faith and the allegations made by the appellant and rejected them. They could not have arrived at the conclusion they did in relation to the substantive grounds if the very similar allegations which were made in respect of the first written warning were accepted by them. However, it is not necessary to embark upon that investigation because it is absolutely clear in my judgment that the finding in paragraph 30 was sufficient to justify dismissal even in the absence of the first written warning. I do not therefore consider that there is anything in ground 2 either.
23. For those reasons, which I've endeavoured to express as compactly as I can, I would dismiss this appeal.
24. SIR STANLEY BURNTON: I agree.

Order: Appeal dismissed. Appellant to pay the respondent's costs in the sum of £1,600.