Appeal No. EAT/0231/03 SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 June 2003

Before
HIS HONOUR JUDGE J BURKE QC
MR P R A JACQUES CBE
MRS J M MATTHIAS

MR F SCOTT-FORDAH	APPELLANT

W H SMITH NEWS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	No Appearance By or on Behalf of the Appellant	

HIS HONOUR JUDGE J BURKE QC

1	This is the preliminary hearing of the appeal of Mr Scott-Fordah against the decision of the Employment Tribunal sitting at Leicester, chaired by Ms S Woffenden and promulgated with Extended Reasons on 14 February 2003.  By that decision the Tribunal dismissed Mr Scott-Fordah’s claim that he had been unfairly dismissed by his employers W H Smith News Ltd.  There were also claims in respect of leave and holiday pay which are not relevant for the purposes of this appeal.

2	Mr Scott-Fordah is represented by Mr Capek, an Employment Law Consultant, who drafted the Notice of Appeal and who has provided a chronology and list of authorities to us.  There is no separate Skeleton Argument; but Mr Capek has included his Skeleton Arguments within the Notice of Appeal.  Neither Mr Capek nor Mr Scott-Fordah have attended today.  We have received a letter from Mr Capek in which he says that he has decided not to attend, trusting that the Skeleton Argument is already reasonably persuasive.  We assume that Mr Capek has Mr Scott-Fordah’s authority not to attend; on the basis of Mr Capek’s letter, we proceed in his absence.  We have, of course, considered his Skeleton Argument and the papers in the bundle with care.

3	Mr Scott-Fordah was employed as a packer and driver at the employer’s premises in Peterborough for 13 months or so before he was summarily dismissed on 14 June 2002 for gross misconduct committed three days earlier on 11 June.  It was not in dispute that, on that day and at his employer’s premises, Mr Scott-Fordah kicked and dented two doors of the car of a fellow employee, Mr Coupland, who was sitting in the car at the time.  He also threw a traffic cone at the windscreen, which was cracked as a result.  Those events were apparently the culmination of a running feud between Mr Scott-Fordah and Mr Coupland, arising out of the sale by Mr Scott-Fordah to Mr Coupland of an allegedly defective computer.  Mr Coupland was also summarily dismissed.

4	Mr Scott-Fordah was summarily dismissed on 14 June after a disciplinary hearing on that day.  He appealed.  His appeal was rejected on 23 July after a hearing by a more senior manager, Mr Armitage, on 15 July.  Mr Scott-Fordah’s case was put on the basis that, while he accepted the truth of the allegations made against him as to what he had done on 11 June, there was considerable provocation and mitigation and his conduct did not amount to gross misconduct.  He also complained that both at the original disciplinary hearing and at the appeal stage there were procedural defects.

5	The Tribunal correctly applied the familiar principles in British Home Stores v Burchell [1978] IRLR 379 with necessary modification in the light of the fact that Mr Scott-Fordah admitted the conduct alleged against him on 11 June.  The Tribunal found that the employers had considered the provocation and the mitigating circumstances so that they had reasonably investigated that which was in issue and that the decision to dismiss fell within the range of reasonable responses.

6	Mr Scott-Fordah complained that the original disciplinary hearing was defective in a number of respects.  One of those respects was that Mr Whitelock, who had witnessed part of the incident of 11 June, also investigated it and made the decision to dismiss.  Another was that the employers did not allow access to Mr Scott-Fordah to witnesses, presumably for the purpose of cross-examination, and to witness statements.  A third was that Mr Scott-Fordah did not know at the original disciplinary hearing that he had to meet a case not only in respect of 11 June but also in respect of an alleged earlier assault by him on Mr Coupland.

9	The Tribunal found, at paragraph 5, that in the circumstances Mr Whitelock’s role as witness and decision-taker did not render the dismissal unfair.  The circumstances, of course, were that the facts, part of which Mr Whitelock had witnessed, were not in dispute; and that being so, one can readily understand why the Tribunal concluded that it was not unfair for Mr Whitelock, whose role as a witness on undisputed facts would have been of no importance whatsoever, had not acted unfairly in being also the decision-taker on 11 June.  The Tribunal concluded that Mr Whitelock was fully aware of the circumstances which gave rise to provocation and mitigation.

10	As to access to witnesses and witness statements, it is well-established that it is not an essential part of a disciplinary hearing that there should be the form of examination and cross-examination of witnesses which takes place in a court or in a Tribunal; and the Tribunal could not have been said to have been acting in any manner in which they were not entitled to act in concluding that there was no unfairness in that respect either.  However, the Tribunal did take the view that the addition to the charges without notice of the previous assault was a procedural defect.  

11	However, the Tribunal went on to consider whether the appeal remedied that defect or indeed any other defects; and they said this at paragraph 7:

7	“To the extent that the above constituted procedural defects in the conduct of the hearing on 14 June 2002 which resulted in the Applicant’s dismissal, the Tribunal has to consider whether the appeal conducted by Mr Armitage remedied the same.”

12	They set out how Mr Scott-Fordah had provided Mr Armitage at the appeal hearing a full account of the background and history that Mr Armitage investigated those matters and himself interviewed the witnesses.  He also, according to the Tribunal, took into account that Mr Scott-Fordah had, before 11 June, complained about Mr Coupland’s conduct but those complaints had not been acted upon.

13	The Tribunal concluded at the end of paragraph 8:

8	“We are satisfied that notwithstanding the Applicant’s lack of access to witnesses and/or their statements and his inability to question witnesses, the facts in relation to the mitigating circumstances put forward by the Applicant were known to Mr Armitage as a result of the investigations he made and he duly considered the weight which should be attributed to them.  The Tribunal therefore concludes that the appeal does give the Applicant the opportunity to state his case and have it fully considered and was sufficiently comprehensive as a rehearing to remedy any procedural defects in the initial disciplinary hearing.”

Mr Armitage upheld the decision to dismiss but only on the basis of what Mr Scott-Fordah had admittedly done on 11 June and not on the basis of anything which had occurred on any earlier occasion.

14	In his Notice of Appeal Mr Capek puts forward what are, in effect, four arguments.  The first is that the appeal could not in law remedy any defects in the first instance disciplinary decision.  He submits that the Tribunal followed the existing case law in the Employment Appeal Tribunal in Whitbread & Co. v Mills [1988] IRLR 501 which he says is at variance with an earlier decision, not of the Employment Appeal Tribunal but of the Chancery Division, in Leary v National Union of Vehicle Builders [1970] 1 Ch. 34.  He accepts, however, that this point was not taken before the Tribunal.  He submits that that does not matter because no question of fresh evidence would arise and, therefore, he ought to be able to argue this point of law.  He refers to the well-known decision o Kumchyk v Derby City Council [1978] ICR 1116.
15	What Mr Capek does not mention in this area of his Skeleton Argument is that decisions such as Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 have made it clear that it is only in very rare cases that a new point should be permitted to be raised at the Employment Appeal Tribunal, whether or not that point involves or does not involve new evidence.  In a case such as this, in which the Tribunal had to consider the nature of the appeal and what happened at the appeal, it is unfortunate indeed that, if none of that mattered because the appeal could not in law remedy the defect, the point was not taken before the Tribunal; and we do not regard this as an exceptional case in which a new point should be taken now.

16	However, even if that point were to be taken, we do not regard it as arguable.  Leary was not a case which dealt with the jurisdiction of an Employment Tribunal to decide on issues of unfair dismissal; and the law is now well-established, in our judgment, and beyond argument, that a sufficiently comprehensive appeal cures or is capable of curing defects at the original disciplinary hearing.

17	In any event, the defects other than the defect in relation to the events before 11 June were not defects, as the Tribunal indeed found, in the original disciplinary hearing, such as to render the proceedings unfair.

18	Accordingly, we take the view that the first ground put forward by Mr Capek on Mr Scott-Fordah’s behalf is not arguable.

19	Secondly, Mr Capek argues that there were flaws within the appeal procedure; and the flaw he identifies is that the appeal was operated in such a way that again, as at the original hearing, Mr Scott-Fordah was not given access to witnesses or witness statements or the notes which management had taken from the various witnesses.
20	We have looked at the Skeleton Argument in detail.  We do not regard any of the matters there set out as being defects in the appeal process.  As we have already indicated, it is well-established that access to witness statements and notes of what witnesses have said to management, cross-examination and matters of that kind are not essential to the fair hearing of a disciplinary hearing or for that matter an appeal hearing.

21	Thus, the Tribunal, in our judgment, were entitled to find as they did, that the appeal process was not itself defective.

22	The third basis on which the appeal is put is that the Tribunal misunderstood the effect of the well-known decision in Polkey v A E Dayton Services [1987] IRLR 503 and came to the conclusion that defects in the procedure did not render the dismissal unfair, whereas they should have come to the conclusion that it was unfair and, following Polkey, left any question of the consequences of that decision as to procedural unfairness to be worked out at a remedies hearing.

23	The short answer to that is that, by the end of the appeal process, according to the Tribunal’s decision, there was no longer any defect in the procedure or any defect which might render the decision unfair.  Those were conclusions which the Tribunal was wholly entitled to reach and we see nothing arguable in Ground 3.

24	Lastly, in Ground 4, Mr Capek argues that the Tribunal have incorrectly applied the band of reasonable responses test to a situation in which it was no longer applicable.

25	We have to say that we have not found Mr Capek’s argument on this point as set out in his Notice of Appeal and Skeleton Argument which forms part of the Notice of Appeal altogether easy to follow.  What he seems to be saying is that the dismissal cannot fall within the band of reasonable responses if there are procedural failures.  If he is saying that, then we have already dealt with the issue of procedural failures and need say no more.  If he is saying that the band of reasonable responses test only applies to the issue as to whether it was reasonable to dismiss in the circumstances but not to any other aspects of the Burchell test, such as did the employer have a reasonable belief in the misconduct or did the employer make a reasonable investigation? – then the answer is that that submission is wrong.  The Court of Appeal has recently made it clear in Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23 that the band of reasonable responses test applies to each of the various stages of the principles set out in Burchell v British Home Stores.

26	We can see nothing in all that Mr Capek has said under Ground 4 of his Notice of Appeal and in the Skeleton Argument which supports it which gives rise to an arguable ground of appeal.

27	For those reasons this appeal is dismissed.