Appeal No. UKEAT/0055/11/ZT
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
24 May 2011
Before
THE
HONOURABLE MR JUSTICE LANGSTAFF
MR P SMITH
MR S YEBOAH
MR
D JACOVELLI APPELLANT
ROYAL
MAIL GROUP LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
|
For the Appellant
|
MR D JACOVELLI
(The Appellant in
Person)
|
|
For the Respondent
|
MR S PEACOCK
(Solicitor)
Weightmans LLP
Solicitors
India Buildings
Water Street
Liverpool
L2 0GA
|
SUMMARY
UNFAIR
DISMISSAL
Reasonableness
of dismissal
Procedural
fairness/automatically unfair dismissal
The Appellant sought to argue that an Employment Tribunal should
not have found his dismissal for misconduct fair where (first) he had not been
able to demonstrate his innocence since his employer’s delay meant that
internal IT records which might have substantiated his case were no longer
available, and (second) that if the disciplinary procedure applicable to a TU
representative (which he was) had been applied the practical consequence would
probably have been that his divisional representative would have secured the IT
documentation before the expiry of the period during which IT records were
kept. This appeal was dismissed, since he had not argued either point before
the Tribunal, and the Tribunal was not obviously wrong to come to the
conclusion that overall the employer’s disciplinary process had been fair,
after a reasonable investigation.
THE HONOURABLE MR JUSTICE LANGSTAFF
1.
This is an appeal against a decision of the Employment Tribunal sitting
at Stoke on Trent. The decision was given orally in January 2010 but detailed
Reasons not until 10 June, some six months after the hearing. That was
because of a late request for those Reasons by the Appellant.
2.
He appeals against the decision, which was to reject his claim that he
had been unfairly dismissed, with the permission of HHJ Richardson sitting
on a rule 3(10) application, leave having been refused earlier by the single
Judge.
3.
HHJ Richardson identified effectively the grounds of appeal
advanced before him by an ELAAS representative, which he thought had a
realistic prospect of success. It would appear therefore that he thought that
no other ground had any such chance.
The underlying facts
4.
The Appellant is an employee who worked as a manual data entry keeper
for Royal Mail from October 14 2002. He was also a trade union
representative of some standing. He took leave between 6-10 October 2008.
As was the practice, that was asked for by a written request which was
granted. He did not turn up for work on 14 October 2008. When he was
challenged about that by his line manager he said that he had verbally agreed
that he should have the additional day with Angela Dunning, whose managerial responsibility
included the authorisation of leave.
5.
She did not accept that that was what had happened. In consequence he
was called for a fact finding interview with a manager, Craig Orchard, charged
with misconduct under the Respondent’s conduct code, and required to attend a
disciplinary hearing. It not having proved possible to arrange two hearings at
which the Claimant’s preferred representative and the Claimant himself could
attend, he was given a serious warning for misconduct. He appealed against
that warning. The appeal was due to be heard by another manager,
Mrs Barlow, on 4 December 2008. Some minutes beforehand, maybe as
little as 20, maybe as much as an hour, the Appellant sent Mrs Barlow a
copy of an email exchange, which he said showed that he had asked Angela
Dunning by email to approve his leave on 14 October and she had responded
affirmatively.
6.
That email exchange was referred to by the Tribunal as the disputed
email exchange. Mrs Barlow apparently came to the view that the copy email
looked suspicious. She adjourned the hearing in order to check. When it later
resumed in January 2009 she came to the conclusion that the appeal against the
disciplinary warning should be rejected. She thought that the email exchange
was fraudulent and should be investigated further. She said so in a letter of
decision on 24 February 2009. A matter of only some ten days later the
Appellant was put on precautionary suspension. A fact finding interview was
carried out on 26 March 2009, and on 27 April he was notified there
would be a formal disciplinary hearing before a Mrs Burgess. He had union
representation and was warned as to his liability to dismissal.
7.
On 1 May the hearing took place. Enquiries had been made, so the Tribunal
found, of the Respondent’s IT department, which was unable to confirm whether
or not the disputed email was genuine or was a subsequent creation made up by
the Claimant. The Tribunal said this:
“13. Mrs Burgess was faced with having to decide between
two conflicting versions. The Claimant asserted that the Disputed E-mail was
genuine; Angela Dunning denied it was true. Mrs Burgess favoured Angela
Dunning’s version for a number of reasons, including the following: the
claimant had a history of unauthorised absence; at his first fact finding
interview he claimed to have booked the leave verbally and later changed his
version of events; he only produced the Disputed E-mail (which would have
exonerated him from the initial disciplinary charge) several weeks later, and
immediately before the appeal hearing with Teresa Barlow; Angela Dunning gained
nothing by her version whereas the claimant would have avoided the disciplinary
sanction; the claimant was aware of the holiday form procedure which he had
used previously; and that the format of the Disputed E-mail looked different
from other internal e-mails. She genuinely believed that the claimant had
fabricated the Disputed E-mail based on these grounds.”
8.
There was an appeal on 17 July 2009. It was a full re-hearing.
The Claimant was represented by his divisional representative, whereas he had
been represented at the earlier hearing by the area representative of the
union. For a further reason, Mr Trunks, before whom the appeal was heard,
genuinely believed that the Claimant had fabricated the disputed email and he
dismissed the appeal.
9.
The argument put before the Tribunal is summarised at paragraph 15,
together with its answer, in these terms:
“15. The Claimant has asserted that the procedure adopted was
flawed because appendix 4 to the Conduct Code should have been followed.
This is the procedure applicable to trade union representatives. However, he
was not on union business at the time, he had previously been dealt with
without appendix 4 applying and without challenging its applicability, and on
this occasion he never suggested at the time that it should apply despite his
knowledge of the procedures and his representation from his union colleagues.
In addition the claimant has complained of delay in the procedure. The only
example is that Mr Trunks took more than the suggested five days in
confirming the appeal decision. In fact it took seven days to prepare a
thorough and reasonable response to the appeal. We do not find that this was a
material breach of the respondent’s procedure.”
10.
That then was the summary by the Employment Tribunal of the allegations
made against the Appellant and the way in which the employer had dealt with
them, and the Claimant’s arguments why that was not a sufficient reason to
dismiss him or why, if there were a sufficient reason, it was unreasonable to
do so. The Tribunal applied the well known principles arising from British
Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods
Ltd v Jones [1982] IRLR 439. Those cases demonstrate that it is for
the employer first to set out what is the reason for dismissal. There was no
argument here that the reason relied upon was his misconduct.
11.
The cases require the employer to have a genuine belief that the
employee concerned in a misconduct case is guilty of misconduct, to have
reached that belief on reasonable grounds and following a reasonable
investigation. The basis for appealing against that decision was identified in
the judgment of HHJ Richardson on the rule 3(10) hearing in these terms:
first, it was arguable that the Tribunal took too narrow a view of delay.
Secondly, the Tribunal, with regard to appendix 4, might arguably have
concluded that that required the involvement of a divisional representative of
the union at a very early stage, within 24 hours of an incident arising, and
that if that had happened in the present case it was arguable that a
consequence would be that the divisional representative of the union would have
secured from the IT department a sufficient trace of the email traffic as to
show whether the disputed emails had indeed been sent or not.
12.
Those are essentially the arguments that have been presented to us today
but we shall say more about those in a moment.
General approach
13.
Before us, as indeed before the Tribunal, the Appellant has represented
himself. With that in mind we set out these general principles so that he may
follow our judgment. First, an appeal must identify an arguable point of law.
We must accept the facts found by an Employment Tribunal unless there is a
cogent case that those facts have been reached either perversely or, in the
case of individual facts, under a material misapprehension of the fact. Both
those cases require a high hurdle to be surmounted.
14.
Second, we were not present at the Employment Tribunal. We do not know
precisely what evidence was produced and what arguments were heard. It is all
too easy to argue differently on appeal from the way in which the argument has
been conducted below. For that reason it is well established - see Kumchyk
v Derby City Council [1978] ICR 1116 - that this Appeal Tribunal may
not hear any argument which has not been advanced before the Employment
Tribunal, except in those circumstances where it can be satisfied that it has
all the material facts and no prejudice would be done to the opposing case.
15.
Against those two central points we consider the arguments put before us
by the Appellant. He advances three reasons why we should find that this
Tribunal’s decision was wrong in law. First he argues the effects of delay.
He maintains here that it was of importance to his case that he had
confirmation as he would wish it from the IT department that the email had
produced as having been sent to him by Angela Dunning had indeed been sent by the
employer’s email systems. Without having any input from the IT department that
could not be confirmed either way.
16.
On the face of it, it would be just as likely that it was not sent as
sent, because it would depend whose evidence - that of Angela Dunning or the
Appellant - was accurate. But that it would have been relevant there can be no
doubt. He argues that it appeared, by the time his case came for hearing
before Mrs Burgess and latterly Mr Trunk, that there was no longer
any possibility, as there once had been, of obtaining the master record from
the main server of the employer. That was because records are, apparently,
kept for six months and no longer. The original emails had been sent on 4 or
5 September. Six months would have expired on 5 March. He was not
in fact suspended until 6 March and disciplined thereafter.
17.
He regards as insufficient a recreation of the email inbox of Angela
Dunning, which, with her consent, Teresa Barlow arranged to be performed. Part
of the record before the Employment Tribunal shows that that was requested very
early on after the intended meeting of 4 December 2008, and by
22 December 2008 that re-creation had been requested and had been
performed. As it happens, it showed that the records of Angela Dunning’s inbox
did not contain any trace of email traffic to and from the Appellant. It does
not, however, appear that the employer relied on that one way or the other
afterwards because the IT department had also indicated that it could not prove
one way or the other whether the email was genuine.
18.
He argues that the effect of delays overall was to put it out of his
reach to obtain the definitive record which would have been available up and
until the start of 6 March. Secondly, he argues that the email in all probability
could have been made available by a different route. He makes this argument under
appendix 4 of the Code of Conduct to which all employees of the Royal Mail
are subject. The Code requires a standard procedure to be adopted. But in the
case of union representatives appendix 4 provides for some modifications
of that procedure. The purpose is to ensure that any disciplinary action taken
against some who is, as it happens, a union representative is not seen by
others as being an attack upon the union. The process, paragraph 2 of appendix
4, includes a requirement that, following any alleged misconduct of a union
representative, the line manager will in the first instance discuss the issue
informally with the individual to establish if the matter can be concluded
between the two parties to everyone’s satisfaction.
“2.2 If this is not possible the alleged misconduct could
indicate the need for formal discipline. In these circumstances the Line
Manager should contact and where necessary hold a meeting with a Divisional
Representative within 24 hours of the incident.
2.3 This discussion/meeting shall determine:
a) Whether the matter can be resolved outside of any
formal procedure by counselling or a ticking off or by action by
the CWU as appropriate.
b) Whether the union representative was acting in a
representative capacity at the time of the incident. If not the
normal Conduct Code should be used.”
19.
Here the argument is that as soon as it became apparent that misconduct
was alleged against the Appellant and because he was a union representative
there should have been a discussion between his line manager and the divisional
representative. That meeting would inevitably have concluded in the present
case that the normal Conduct Code should thereafter have been used, because it
is not in dispute that the Appellant was acting in an individual capacity at
all times in relation to his leave and his appeals and in putting forward the
emails in his defence.
20.
Nonetheless it is said as a matter simply of ordinary practice a
divisional representative would, upon being contacted, almost certainly have
got in touch with the Appellant. He would have asked what was happening. He
would have been told. The response of the Appellant would have shown the
divisional representative that there was a record of the disputed email
traffic.
21.
The divisional representative is a person of some power and clout within
the organisation. It is therefore likely that he would have used that clout to
ensure that the IT department carried out an appropriate investigation to see if
the email had indeed not been sent, so that the discipline which might be meted
out to the employee was indeed truly justified. If so, the material which the
Appellant wished to obtain from the IT department would have become available
by that route too. One way or the other, therefore, the material would have
been available to the employer. Without that material the process of
investigation could not be said to be a fair and complete process.
22.
Thirdly, the Appellant argues that the decision of the Tribunal was
perverse. It was perverse because it found that there was a reasonable
investigation. There could not be a reasonable investigation without the
material from the IT department here being available one way or the other. The
delays overall were so unreasonable that the decision to which the Tribunal
came - that the investigation was reasonable - was one to which no Tribunal
properly directed could or should have come.
23.
For the Respondent, Mr Peacock, who was not present before the
Tribunal, dealt with a number of matters of fact, but then submitted to us that
there was here no demonstrable error of law. He could see no trace of the
argument as to delay being put to the Employment Tribunal. Nor, he asked us to
say, was there any trace of the argument as to the effect, if there had been,
of a following of appendix 4. Although appendix 4 was raised - see paragraph
15 which we have quoted above - that was as part of a general complaint that
the investigation was procedurally flawed. It was not an argument that the
consequence of entering into appendix 4 would probably, life being as it is,
have been that matters and documents would have come to light which would not
otherwise have done. He argues that it is simply too late now to raise these
arguments.
Discussion
24.
Because we have to begin with the principles that we out at the start of
our discussion of the argument, we have to ask what it was that was actually
argued here before the Tribunal. There is no written record of opening or
closing submissions. That is no doubt understandable because the Appellant was
in person. Paragraph 15 of the Employment Tribunal’s Reasons is what we
have to go on. That shows that the complaint made by Mr Peacock about the
extent of the argument so far as appendix 4 is concerned appears justified.
The way in which it is set out is to suggest that the argument adopted by the
Appellant was that appendix 4 of the Conduct Code should have been followed
because that was the procedure. It does not appear that he argued that,
because it should have been adopted, it would have had the practical effect as
a consequence that a powerful official would have intervened to secure
evidential material being produced.
25.
The criticism made before us in part and which appears to be made to the
Tribunal was that it was for the employer to adopt appendix 4. The obligation
rests upon the employer and the employer’s officials. We have little
difficulty in accepting that as a general proposition, but it does not answer
the question here. The Tribunal was considering whether overall the process
was or was not fair. The argument put to them was that that overall fairness
was affected by a failure to follow appendix 4 simply because it should have
been followed. It was that argument that it was dealing with at paragraph 15.
It correctly identified that there was no suggestion in the originating
application to the Tribunal by the Appellant that appendix 4 should have
applied.
26.
The last four lines of paragraph 15, beginning with the words, “In
addition”, deal with the second argument which it appears the Tribunal thought
was being addressed to them. That was of a complaint of delay in the
procedure. The words, “The only example is that Mr Trunks took more than
the suggested five days…” are explicable as it seems to us only upon the basis
that this was the specific complaint made before the Tribunal by the
Appellant. It would follow that there was no other more generalised complaint
of delay.
27.
The Appellant has advanced his arguments with some charm and frankness,
and he accepts that he simply cannot say with any real certainty whether he did
or did not put his arguments on a wider basis. He thinks he may have done but
he is certainly far from sure and would not wish us to take him as asserting
definitely that he did. Mr Peacock, for his part, has not suggested that
there was any wider argument; indeed he disputes it. We rely upon the
implications to be drawn from paragraph 15 itself, the Tribunal’s own
words, which are not specifically challenged on the appeal. Accordingly, it
seems to us that we have to look at this case as though the only argument as to
delay which was placed before the Tribunal with any specificity was that set
out at paragraph 15. The wider approach to delay, which lay behind the
submission today, was simply not approached. If that is so then the delay
argument must fall.
28.
As to appendix 4, again it does not appear that the Tribunal was asked
to consider what might have happened if a divisional representative had been
involved. It is not difficult to see that if they had been they would have
expected to hear from a divisional representative; one was, after all, involved
in the appeal before Mr Trunks. They would have expected to have been
told what an individual would or would not have done in these circumstances.
The absence of that confirms the inference from paragraph 15 as to the nature
of the arguments addressed to the Employment Tribunal on this occasion.
29.
As to perversity there is a wider basis for this argument. This might
rely generally upon delay, but here we should simply say this. We were
referred in reply by the Appellant to the case of the Secretary of State for
Justice v Mansfield EAT/0539/09/RN. That was because it was an easy
route for the Appellant to refer us on to comments which had been made in the
case of RSPCA v Cruden [1986] ICR 205, a case which involved what
the Employment Appeal Tribunal referred to as, “a lengthy period of unjustified
delay”. The Tribunal had indeed described the delays in that particular case
as, “extraordinary by any standards”.
30.
In the case of A v B [2003] IRLR 405 a further reference
to RSPCA v Cruden was made, after which the Employment Appeal
Tribunal added:
“Where the consequence of the delay is that the employee is or
may be prejudiced, for example because it has led to a failure to take
statements which made otherwise have been taken, or because of the effect of
delay on fading memories, this will provide additional and independent concerns
about the investigative process which will support a challenge to the fairness
of that process.”
31.
There may here be a reflection of the general principles which the
courts apply when dealing with abuse of process. In some cases it is simply
unfair for a person to face trial at all. In others the circumstances may be
such that he cannot have a fair trial. Delay may be one of those
circumstances, but in general terms the delay will be highly exceptional if the
ordinary practice of fair procedure by the court or tribunal hearing the matter
is not to resolve most of the problems.
32.
This is not before us a case in which the Employment Tribunal has
regarded the delays as exceptional at all, as was apparently the case in A
v B and had apparently been the case in RSPCA v Cruden.
Indeed, the Tribunal observed at paragraph 20:
“We find that the disciplinary investigation was thorough and
reasonable and in accordance with the Respondent’s Conduct Code and normal
standards of good industrial relations. The claimant had advice and
representation from his union throughout and was able to state his case in
detail against the allegations raised. The decision makers were careful and
thorough and there were no inordinate or
unfair delays.”(italics added)
33.
Although there may be some cases in which, in the particular
circumstances of those cases, the delay has been such as to make it unfair for
a case to proceed, this must necessarily be determined upon a case by case
basis. The delay which is pointed to here was not something about which it
appears specific complaint was made before the Tribunal. It was made after
considering a more discursive Notice of Appeal by counsel acting pro bono for
the Appellant before HHJ Richardson. He considered that in paragraph 15
“delay” might have been used too restrictively. But as we have pointed out,
the use of delay there depended upon the argument addressed to the Tribunal, as
to which - frankly and engagingly though it was put - the Appellant has agreed
he cannot say was any different from that which the Tribunal appear to imply.
34.
We cannot here come to the conclusion that the Tribunal was necessarily
perverse to the high standard which that concept involves in coming to the
conclusion that the investigation was thorough and reasonable. We point out
that it is a reasonable investigation which is required. It is not one which
has to meet the standards of perfection. It is not necessarily even the
standard that one would expect in a criminal investigation, though
circumstances and the conclusion to be reached always differ from case to case,
and the decision is left generally to the good sense of an Employment Tribunal.
35.
It is for us to ask when looking at perversity whether the decision is wholly
impermissible - so obviously wrong that the informed bystander would recognise
that with explanation. We cannot say that of this case. We would however add
this: the Tribunal did have regard to evidence that the Appellant had sought
the full IT records. They had a statement of a Mr Brennan to that effect
supported by his own. That was part of the material before them. They had to
look at the reasons given by officers of the employer who were not, it would
appear, seriously criticised on the basis of any lack of integrity. They took
the view that there was “an absence of definitive proof from the IT
department”. It appears that the Tribunal therefore thought that they could
not say that the evidence which might have been obtained before 6 March
from the IT department would have shown that the Appellant was in the right any
more than they could conclude that it would have shown that Angela Dunning was
in the right. It was simply one of those features which it had to take into
account in coming to its overall decision at paragraph 20, whether in the
circumstances of this case as this Tribunal saw it, the investigation was or
was not thorough and reasonable.
36.
Whatever other judgments other Tribunals might have reached, that was a
decision for it and for it alone unless it was in error of law. Here, despite
the attractive way in which the Appellant has put forward his submissions, we
are forced in the event to agree with Mr Peacock that nothing which
amounts to an error of law here, as opposed to a disagreement with the
conclusion and a disappointment at aspects of the process has been
demonstrated. It follows that we have no option but to dismiss this appeal.
