United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS D ROMNEY (of Counsel) Instructed by: Messrs Winckworth Sherwood Solicitors 35 Great Peter Street London SW1P 3LR
For the Respondent	No Appearance or Representation By or on Behalf of the Respondent


 


HIS HONOUR JUDGE PETER CLARK

1. This is an appeal by the well-known footballer (and now manager), Mr Dennis Wise, against the decision of an Employment Tribunal sitting at Leicester, promulgated with Extended Reasons on 3 July 2003, dismissing his complaint of unfair dismissal brought by his former employer Leicester City Football Club Plc (in Administration) ("the Respondent").

Background

2. On 18 July 2002, during a pre-season training club tour of Finland the Appellant was involved in an incident with a team-mate, Mr Callum Davidson. As a result of a blow or blows in the face administered by the Appellant, Davidson sustained a fractured cheekbone with bruising and swelling around the right eye.
3. Initially, the club manager, Mr Adams, fined the Appellant two-week's wages (he then earned £25,000 per week under his contract) and sent him home. However, the Respondent decided to take disciplinary proceedings. On 22 July the Appellant was suspended pending an investigation into allegations of serious misconduct.
4. A disciplinary hearing took place before the club chairman, Mr George, on 26 July. That hearing was conducted in a way which was procedurally unfair in a number of respects, set out by the Tribunal at paragraph 23 of their Reasons. The upshot was that the Appellant was dismissed on 14 day's notice on 1 August, as provided for in clause 16 of his contract of employment with the Club.
5. The Appellant was employed under a 3-year contract which was subject to the standard terms and conditions of an FA Premier League and Football League contract. The Club had just been demoted from the Premiership. They were also in serious financial trouble.
6. Under clause 16 of the contract, if a player is guilty of, among other things, serious misconduct, the Club may terminate the contract on 14 day's written notice. The Club terminated the Appellant's contract under clause 16.
7. Clause 18 provides that if a player is guilty of misconduct, among other failings, the Club may impose a fine not exceeding 2 week's wages. That was the penalty initially imposed in this case by the manager, Mr Adams. An issue subsequently arose as to whether the Club had thereby waived its right to terminate under clause 16. That issue is no longer live before us.
8. The contract also provided for a 2-stage appeal process. The first stage appeal is to the Football League Disciplinary Committee (FDC); the second is to the Football League Appeals Committee (FLAC).
9. The Appellant exercised his right of appeal to the FDC. That appeal came before a panel consisting of Sir Philip Otton, a retired Lord Justice of Appeal, Mr Robbie Earle, a retired player and Mr Frank Clark, a retired manager, on 23 August. The panel decided to conduct a full rehearing. As a result the hearing itself lasted from 11.00am until 5.30pm. Oral evidence was given by the Appellant, who pleaded self-defence and Mr Davidson and Matt Elliott, the club captain, were also called. All witnesses were subject to cross-examination, the Appellant being represented by Queens Counsel experienced in criminal law. The panel preferred the evidence of Davidson and Elliott, rejecting the plea of self-defence advanced by the Appellant. They found as fact that the Appellant had gone into Davidson's room looking for trouble and had struck him twice, causing the injuries earlier mentioned. Even applying the criminal standard of proof, the panel was satisfied that the Appellant had committed an assault occasioning Actual Bodily Harm. On these findings, on the substantive issue as to whether the Appellant was guilty of serious misconduct under clause 16 of the contract or misconduct under clause 18, the panel found him guilty of serious misconduct.
10. Having done so, the panel proceeded to find that the sanction of dismissal was disproportionate and substituted a penalty of two week's loss of gross wages. Counsel for the Club pointed out that he had not been heard on penalty before that award was made. The panel then heard both sides on that issue but maintained the sanction of two week's lost wages.
11. Against the FDC decision the Club appealed to FLAC. They took three points:

(a) as a matter of contract, having found serious misconduct, the FDC had no power to say that dismissal was disproportionate;

(b) in any event, FDC was wrong because dismissal was the appropriate penalty; and

(c) there was a procedural failing by FDC because they decided penalty before hearing submissions.

12. The Appellant cross-appealed on the waiver point which we mentioned earlier, arising out of Mr Adams' initial sanction.
13. That appeal came before a FLAC panel chaired by HHJ Robert Reid QC on 18 September 2002. No evidence was heard, the hearing proceeding on submissions and legal argument by Counsel only. Pausing there, we accept Miss Romney's characterisation of the FLAC hearing as a review rather than a rehearing (cf. the FDC hearing). FLAC dismissed the Appellant's cross-appeal on the waiver point and the Club's complaint that there had been a procedural irregularity in the FDC deciding penalty before hearing submissions on the point.
14. As to the Club's substantive appeal FLAC concluded that, having found serious misconduct the FDC was clearly wrong to substitute a two week's wages fine for dismissal. They took into account the various factual findings made by FDC as to the assault itself and its aftermath in a reasoned decision allowing the Club's appeal. The original dismissal stood.

The Employment Tribunal Decision

15. In short, the Tribunal found, on the Appellant's complaint of unfair dismissal, that the Club's reason for dismissal related to the Appellant's conduct, a potentially fair reason.
16. On the critical issue as to whether or not the dismissal was unfair, applying section 98 (4) of the Employment Rights Act 1996, they concluded:

(1) The original disciplinary hearing before Mr George was wholly defective.

(2) There was a full rehearing before the FDC, which decided on the facts that the Appellant had struck a team-mate with two blows in an action which was unprovoked and discreditable. There was no unfairness in the procedure followed. That panel went on to conclude that the proper penalty was loss of 2 week's wages, not dismissal.

(3) Before FLAC the Appellant did not appeal the FDC finding of serious misconduct.

(4) Based on the finding of serious misconduct by FDC, following a full hearing, FLAC revisited the question of sanction and determined that dismissal was a fair sanction. That panel did not limit its consideration to the purely contractual question as to whether the FDC had power to award a penalty short of dismissal having found clause 16 serious misconduct (cf. the first and second grounds of the Club's appeal to FLAC).

(5) They distinguished the Scottish EAT decision (Lord Johnston presiding) in Thomas v St Johnstone Football Club Ltd (EAT/48/02, 30 August 2003, unreported), where a decision of the Scottish equivalent of the FDC was quashed by the equivalent of the FLAC. We shall return to that decision later in this judgment.

(6) They held that the Appellant had, notwithstanding the original procedural unfairness of the Club hearing, been given every opportunity to put his case at the FDC hearing. He was found guilty of serious misconduct on the facts, a finding which he did not appeal to FLAC.

(7) On those facts dismissal fell within the range of responses open to a reasonable employer.

(8) In these circumstances the dismissal was fair.

The Appeal

17. We begin with two, now well-established propositions of law. First, it is not enough that dismissal for the misconduct found falls within the range of reasonable responses for a finding of fair dismissal: see Post Office v Foley [2000] IRLR 827 (CA). The fairness of the procedure followed by the employer must also fall within the range of reasonable responses: see Sainsbury v Hitt [2003] IRLR 23 (CA); Whitbread v Hall [2001] IRLR 75 (CA). Secondly, procedural defects at the dismissal stage will only be cured on appeal where the appeal proceeds by way of a rehearing. A review of the original decision to dismiss will not suffice to cure the earlier procedural failings: see Whitbread v Mills [1988] IRLR 501, applying the Privy Council decision in Calvin v Carr [1980] AC 574 and Leary v National Union of Vehicle Builders [1971] Ch. 34 (the old natural justice cases); Clark v Civil Aviation Authority [1991] IRLR 412 and Byrne v BOC Ltd [1992] IRLR 505 (EAT), in which Knox J reviewed the earlier cases.
18. With those principles in mind we turn to the submissions made by Miss Romney in support of the appeal. We should record that the Respondent is in Administration; took no part in the proceedings before the Employment Tribunal and, through the joint administrators does not oppose this appeal. That said, it is not the practice of the EAT to allow an appeal against a reasoned decision of an Employment Tribunal by consent, or indeed by default. We must be satisfied that the Tribunal's decision discloses an error or errors of law (Employment Tribunals Act 1996, section 21 (1)). However, in reaching our conclusions in the appeal we have not had the benefit of argument on behalf of the Respondent.
19. Miss Romney has advanced this appeal on three grounds however, as we indicated towards the end of her submissions, we take the view that the appeal stands or falls on her primary submission which relies first on the EAT decision in Thomas. He was a professional footballer employed by the Scottish Premier League Club St Johnstone. The Club terminated his employment after upholding an allegation that he had taken drugs in a public place. Dismissal followed a disciplinary hearing at which he was found guilty of gross misconduct. It seems that SPL players' contracts contained similar rights of appeal to those of English players. Thomas appealed to the SPL Commission. A panel chaired by a Queens Counsel determined that he was guilty of serious misconduct within the meaning of his contract, but that the decision to dismiss was too severe. Accordingly the decision to dismiss was quashed.
20. Against that decision the Club appealed to the SFA Appeals Committee. At a hearing before the Committee an attempt by the player to make representations was denied, although the Club was able to make representations. The Committee determined that the SPL decision should be quashed but gave no reasons for their decision.
21. On a complaint of unfair dismissal the Employment Tribunal found that the initial decision by the Club was unfair due to procedural errors, but that those errors had been cured by the subsequent appeal to the SBL, rendering the dismissal fair.
22. On appeal, the EAT held that since the SPL decision had itself been quashed by the SFA Appeals Committee decision, the Club could not rely on the SPL decision, itself a nullity as a result of the subsequent Appeals Committee Decision, to cure the procedural defects at the Club level disciplinary hearing. It followed that the dismissal was unfair, although questions of both the Polkey deduction and contribution were remitted for consideration by the Employment Tribunal. In so concluding, the EAT made on assumption in favour of the Respondents that the SFA appeal hearing was supportable both by reference to the contract and substantive merits of the case.
23. Thomas was cited to the Employment Tribunal in the present case by Miss Romney. The Tribunal dealt with a submission based on that authority at paragraphs 20 and 26 of their reasons. They distinguished the case on its facts. There, the first level appeal decision was quashed on further appeal. It was a nullity and therefore could not cure the procedural defects at Club level. Here, FLAC did not quash the FDC decision. They proceeded on the basis of the FDC finding of serious misconduct, itself not appealed by Mr Wise, following a proper factual enquiry, and differed only on the question of sanction.
24. Miss Romney renews her submission before us that Thomas is on all fours with the present case and should be followed. She argues that the Club's decision to dismiss the Appellant was procedurally unfair, as the Tribunal found. We agree. She further submits that, as in Thomas, in upholding the Appellant's dismissal FLAC quashed the FDC decision. Thus, insofar as the procedure before the FDC cured the defects at the Club disciplinary hearing, that does not avail the Club since the FDC decision was later quashed and became a nullity.
25. On this part of the appeal we agree with the Tribunal and reject Miss Romney's submission. The facts in the two cases are materially different. In the present case FLAC did not simply quash the FDC decision. They accepted the FDC finding that Mr Wise was guilty of serious misconduct and proceeded on that basis to consider sanction. In a reasoned decision given by Judge Reid QC following a fair review hearing, FLAC considered not only the question as to whether FDC had power to impose a penalty short of dismissal under the player's contract, they also considered what was the appropriate penalty and concluded that it was dismissal: see paragraphs 17-18 and 27 of the Tribunal's reasons.
26. However, that is not quite the end of the matter. Miss Romney puts the point in another way, not expressly dealt with in the Thomas judgment. She recalls the principle, earlier stated, that in order to cure initial procedural failings the appeal process must be by way of rehearing and not review of the initial decision. In the present case the first instance decision at Club level was procedurally flawed. The FDC appeal was by way of rehearing and was conducted fairly; it was capable of curing the earlier procedural deficiencies. However, and this in our view is the crux of the appeal, the FDC hearing did not result in a decision which upheld the original dismissal decision; had it done so, we are satisfied, the Tribunal's decision would be unimpeachable; that hearing resulted in the dismissal being overturned. It was the subsequent FLAC hearing, itself, we accept, taking the form of a review of the FDC decision and not a rehearing, which reinstated the original Club decision to dismiss.
27. In these circumstances Miss Romney submits that the Respondent cannot rely, either on the FDC rehearing which imposed a sanction short of dismissal, nor the FLAC decision, which followed a review, to cure the procedural irregularities at the initial hearing. She invokes the further principle to which we have referred, that fairness requires not only that the sanction falls within the range of reasonable responses, but also the procedure by which that sanction was reached. It is on this latter requirement that the Respondent falls down. The dismissal is unfair.
28. We are unable to see any answer to that submission and in the absence of argument to the contrary we accept it. It follows that the Tribunal fell into error in their approach demonstrated at paragraph 27 of their reasons. They were not entitled to amalgamate the two levels of appeal and take the final sanction of dismissal at the review stage (FLAC) where the panel rehearing the case (FDC), after hearing the witnesses, found not only that the Appellant was guilty of serious misconduct, but that such misconduct did not merit dismissal.
29. In these circumstances we shall allow this appeal and substitute a finding of unfair dismissal. As to remedy, that issue must be remitted to a fresh Tribunal for determination. Issues of the Polkey deduction and contribution arise. They were not dealt with by this Employment Tribunal (see their reasons, paragraph 20); we are unable to decide those questions without hearing the evidence.