Appeal No.	 EAT/465/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 March 2002
Judgment delivered on 2 May 2002

Before
MR COMMISSIONER HOWELL QC
DR D GRIEVES CBE
MR W MORRIS

MR F MAXHAM	APPELLANT

PROVEND SERVICES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR MAXHAM
THE APPELLANT
IN PERSON	
For the Respondent	MR T KEMPSTER
(of Counsel)
Instructed By:
Messrs Clarks
Solicitors
Great Western House
Station Road
Reading
Berkshire
RG1 1JX	

MR COMMISSIONER HOWELL QC:

1	This is an appeal by Mr Franklin Maxham against the decision of the London Central Employment Tribunal issued on 8 March 2001, dismissing his complaint of unfair dismissal against his former employers, Provend Services Ltd.  He had been employed by them from 27 January 1997 to 14 February 2000 as a “vending operator van driver”, his duties being to go round servicing and restocking vending machines on their customers’ premises. There is no doubt or dispute that Mr Maxham was suspended from work on full pay from 13 or 14 January 2000, following a complaint by the manager of one of the Respondents’ customers (“Adlers”) of rude and aggressive behaviour towards him by Mr Maxham, when Mr Maxham had been in the canteen on Adlers’ premises in the course of his duties and the manager had intervened to tell him to stop banging a vending machine against the wall.  

2	Nor is there any doubt or dispute that it was for his behaviour on this occasion that Mr Maxham was subsequently dismissed, on 14 February 2000 after a disciplinary hearing on 4 February 2000; or that in deciding to impose the dismissal, and in confirming it later after two separate appeal hearings on 24 March and 30 May 2000, the Respondents took into account previous complaints of rude and aggressive behaviour by Mr Maxham.  These included in particular one by another customer (“Comag”) about his behaviour in an incident involving the use of that firm’s telephone when he was on their premises.  That had led to an earlier disciplinary hearing and to the issue of a final written warning letter in November 1999, only some six weeks before the further incident at Adlers which led to his dismissal.

3	Mr Maxham’s Originating Application was presented on 11 April 2000, after he had been given the result of the first internal appeal and had exercised his right of a second appeal under the employer’s procedures, but before the second appeal process had taken place.  In it he alleged that on suspension following a verbal complaint from Adlers he had promptly given an explanation of the incident in January 2000, and had been falsely accused of shaking a vending machine.  He complained that at the disciplinary hearing that took place on 4 February 2000 no written copy of the complaint from Adlers had been given to him; though extracts had been read out from a file, and other matters relating to problems with colleagues and Comag, the customer which had made the previous complaint, were also mentioned.  His requests for written details of the complaints against him had not been met, and he had not had a fair hearing at the appeal on 24 March, when new complaints against him had been introduced.  

4	The Respondents’ Notice of Appearance was deferred until after the second internal appeal process had been completed.  That was conducted by Mr Brotherwood, their Finance Director, who had not previously been involved in the disciplinary process against Mr Maxham.  On 17 May 2000 Mr Brotherwood wrote to Mr Maxham explaining that the further appeal process would take the form of “a re-hearing of the evidence such that all parties to the process have the opportunity to review and comment upon those factors to be taken into account in reaching any decision”.  He enclosed for Mr Maxham copies of the three documents to which reference had been made at previous hearings, listed as “(1) Customer complaint from Adler. (2) Colleague complaint. (3) Customer complaint from Comag”, and said:

“I also note from your application to the Industrial Tribunal that you consider lack of this information has prevented you from adequately preparing a defence against your dismissal.  I hope that you now feel in a position to continue with the Appeals Procedure.  Please can you send me your written grounds of appeal within 7 days of receipt of this letter.  I have arranged for the appeal hearing to take place on 30 May 2000 at 10.00 am to be held at the offices in Perivale.  As you are aware you have the right to be accompanied by a representative of your choice at this meeting.”

5	For the purposes of this appeal we have been provided with a copy of the minutes of that appeal hearing which took place on 30 May 2000.  The hearing was conducted by Mr Brotherwood, with a Personnel Executive in attendance from the Respondents’ Group Holding Company as a witness.  Mr Maxham attended, accompanied by a witness of his own, and took a full part in the hearing which occupied some 2½ hours, as recorded in the minutes extending to eight closely typed pages.  

6	Following that hearing Mr Brotherwood decided to uphold the dismissal, for reasons he explained in a detailed letter dated 9 June 2000.  In this he said that as Mr Maxham had denied the complaints made against him by the two customers of the firm, “In view of the conflict of evidence, I have had to decide which versions are more believable.  I can find no sensible reason why two customers would independently write to make ‘false’ complaints against you.”  After dealing with the complaints about the way information had been provided to Mr Maxham at the earlier disciplinary meetings, he said that he had to use his own judgment based on the evidence available, and was unable to come to any other reasonable conclusion than that all three incidents dealt with at the appeal hearing before him had happened as alleged. Abusive behaviour towards customers was unacceptable: it put the business at risk and was therefore always a very serious matter.  As there had been two such complaints within such a short space of time and there had been no admission or apology by Mr Maxham, the decision to dismiss should be upheld.  

7	The Respondents’ Notice of Appearance dated 13 June 2000 contended that Mr Maxham’s dismissal had, in all the circumstances, been fair.  At all stages the Respondent had been satisfied on the evidence that he had been guilty of misconduct at Comag in that he had committed actions at their premises bringing the Respondent into disrepute, and at Adlers he had committed further misconduct bringing them into disrepute, and even without the previous warnings his actions justified his dismissal without contractual notice.

8	  The Tribunal who heard the case on 8 and 9 February 2001 recorded in their Extended Reasons sent to the parties on 8 March 2001 that having heard oral evidence from Mr Maxham himself, his line manager, and from Mr Brotherwood who heard the final appeal, they were satisfied that he had been dismissed “on grounds of gross misconduct” and a reasonable investigation had been carried out.  They recorded that:

“5 … We are satisfied that the Respondents did have a genuine belief as to Mr Maxham’s conduct since it reflected two previous incidents, one a complaint by a fellow employee, Michelle Buckley, and the other by another customer called Comag.  The conduct complained of was strikingly similar to that reported by Nigel Thomas [the senior manager of Adlers who made the complaint on 13 January 2000] and the Respondents were entitled to accept, on the balance of probabilities, that Mr Maxham had committed the conduct complained of, notwithstanding his denial of it at the disciplinary and appeal hearings.
6…  the image of the company was important and it was that which was being put at risk by Mr Maxham’s conduct.  The previous incident with Comag was just as serious and the repetition of Mr Maxham’s conduct justified the Respondents in dismissing him.  That decision was in our view well within the band of reasonable responses open to the Respondents.”

9	The Tribunal did however go on to find that the Respondents had been at fault in the procedure that had been followed over the final written warning given at the end of November 1999, after the Comag incident.  The letter dated 29 November 1999 in which the final written warning had been set out had omitted to specify the conduct which, if repeated, could lead to dismissal; and this was contrary to the terms of the Respondents’ own Disciplinary and Grievance Handbook which was in evidence before the Tribunal.  A second procedural defect which the Tribunal identified in paragraph 8 of their Extended Reasons was that the letter summoning Mr Maxham to the first disciplinary hearing on 4 February 2000 after his suspension had not stated that the meeting could lead to his dismissal.  These were however the only procedural defects found by the Tribunal, and they dealt with them as follows:

“8  …  However, we conclude that the defect[s], although apparent, do not make the dismissal unfair for the following reasons.
9  Firstly, Mr Maxham must have realised that his conduct was unacceptable and that he had been given a final written warning.  It would not take much imagination to appreciate that a repetition of such conduct within a short space of time might lead to dismissal.
10  Secondly, as [the Respondents’ solicitor] pointed out in her submissions, procedural defects can be cured on appeal if the appeal amounts to a full re-hearing.  The final appeal held by Mr Brotherwood was thorough and lengthy, taking more than two hours.  Mr Maxham was obviously aware by then that his conduct was of such a serious nature as to lead to his dismissal and at that final appeal he was given the opportunity to re-present his case in full.  Mr Brotherwood’s decision was arrived at after careful thought and further investigation and his reasoning is set out at length in his letter of 9 June 2000.  We therefore conclude that the procedural deficiencies in the correspondence leading to the dismissal hearing were cured in the appeal process.”

10	Mr Maxham’s original Notice of Appeal dated 9 April 2001 against that decision alleged that the Tribunal, while accepting the Respondents’ procedure had been flawed, had “showed a lack of understanding of the situation” on a number of points where Mr Maxham took issue with the Tribunal’s findings on the facts and their acceptance of Mr Brotherwood’s evidence.  It was contended that the Respondents had “jumped from first written warning to dismissal”, too much credence had been given to the complaint by Mr Thomas in view of his position with Adlers, and Mr Brotherwood had not conducted a genuine appeal process but simply papered over the cracks of mistakes made by his juniors.  

11	On the preliminary hearing of this appeal before the EAT on 20 June 2001 Mr Maxham appeared by counsel, who subsequently assisted him with the drafting of the substituted Notice of Appeal now before us.  The order made on that hearing directed that the case should proceed to full hearing only on the substituted ground of whether the Tribunal had misdirected themselves in law or failed to give adequate reasons in relation to whether they found Mr Maxham to have been fairly dismissed for one act of gross misconduct warranting summary dismissal by itself (as appeared to be implied by the reference to gross misconduct in paragraph 2 of their Extended Reasons) or for the repetition of conduct despite a still current warning (which appeared to be the finding in paragraph 6).  If it was the latter, then the argument on Mr Maxham’s behalf was that it had been irrational for the Tribunal to rely on the supposed curative effect of the subsequent disciplinary appeal process, when the root of the defect in procedure was the lack of a clear warning not at the dismissal stage but before the actual event relied on as justifying dismissal.  Apart from that issue, all the other grounds of appeal were dismissed by the EAT Order dated 20 June 2001.  That order was not appealed.

12	When the matter came before us on the full hearing Mr Maxham appeared in person, no longer represented.  As Mr Maxham said, he is not a lawyer, and he did not attempt to formulate his submissions in terms of points of law.  Instead he relied on numerous contentions on the facts of the case, to some extent repeating arguments made earlier in his Originating Application or to the Tribunal, and in particular on what he said was an unfair procedure on the part of his employer which had not heard his side of the argument and chosen to believe the complaints from its customers instead of what he said.  He repeated an argument in his original Notice of Appeal that the warning letter dated 29 November 1999 following the Comag incident (which Counsel on his behalf at the preliminary hearing conceded he had received) could not be relied on by the employer as a final written warning since it was the first formal written warning he had received.  

13	On the issues actually set down for hearing on the amended Notice of Appeal, our unanimous conclusion is that Mr Kempster’s arguments on behalf of the Respondents are correct, and it is clear on full consideration that in relation to those issues the Tribunal did not misdirect themselves or otherwise err in law.  On the apparent divergence between the Tribunal’s reference to “gross misconduct” in paragraph 2 of their Extended Reasons and the finding in paragraph 6 that “the repetition of Mr Maxham’s conduct justified the Respondents in dismissing him”, we think Mr Kempster was right in pointing out that for the purposes of section 98(2) Employment Rights Act 1996 there is no magic in the use of the adjective “gross” in relation to misconduct. The decision for the Tribunal to make is whether the reason for the dismissal “relates to the conduct of the employee”, which on the tribunal’s findings this dismissal undeniably did.  The question they then had to address under section 98(4) was whether that dismissal was reasonable in all the circumstances applying the well established test in British Home Stores v Burchell [1980] ICR 303, to which the Tribunal expressly referred.  So far as these issues are concerned, in our judgment the Tribunal’s decision shows that they did address the correct questions, their conclusion cannot be characterised as perverse and their reasons for it are adequately explained.  

14	We are also unanimously of the view that the Tribunal were justified in reaching the conclusion that despite the defect they identified in the final written warning letter, “Mr Maxham must have realised that his conduct was unacceptable and that he had been given a final written warning”, so that he ought as a reasonable person to have appreciated that a repetition of similar behaviour within a short space of time might lead to dismissal without having to be told so in terms.  That was an adequate explanation of why the admitted defect in the letter of 29 November 1999 not having spelt this out expressly did not make a difference to the Tribunal’s decision.  The following paragraph, relating to curing procedural defects on appeal, appears to us on a fair reading to be directed not to that but to the separate procedural defect identified in paragraph 8 of their Extended Reasons, in Mr Maxham not having been expressly advised in the letter summoning him to the disciplinary meeting on 4 February 2000 that his dismissal was a possible outcome of that meeting.  That appears to us clear from the final sentence of paragraph 10, where they said “We therefore conclude that the procedural deficiencies in the correspondence leading to the dismissal hearing  [our emphasis] were cured in the appeal process”.  

15	We are therefore unanimous in holding that the grounds in the amended Notice of Appeal have to be dismissed.  However as noted above, Mr Maxham in the course of the appeal hearing put forward a number of broader contentions and complaints about the procedure adopted by the employers leading up to his dismissal.  As Mr Kempster pointed out, these contentions were outside the scope of the issues directed for full hearing.  They were also outside the scope of the contentions in his original Notice of Appeal or those put forward on his behalf as arguable grounds of appeal at the preliminary hearing: instead they appeared to go right back to the original complaints in his Originating Application, made at a time before the appeal process conducted by Mr Brotherwood had taken place, about failure to provide him with copy documents and other matters at the stage of the initial disciplinary hearing on 4 February 2000, and (in one respect) at the first appeal on 24 March.  In effect, he was asking us to extend the scope of the appeal at the full hearing not only beyond the issues set down for that hearing, but also beyond the original scope of the appeal itself and the matters addressed and dealt with by the Tribunal.  

16	We are unfortunately divided over what should be done about these additional contentions.  The majority conclusion is that there is no proper basis for introducing these matters now or for allowing the decision of the Tribunal to be called into question as a result.  They were not raised as arguable grounds of appeal on behalf of Mr Maxham at the preliminary hearing when counsel appeared for him and the issues for full hearing were defined, the remaining grounds of appeal being dismissed.  Moreover although Mr Maxham is not a lawyer, he has demonstrated that he is well able to identify and articulate any matters he wishes to complain about, and we were given no explanation of why these matters could not have been put forward at any earlier stage as reasons why the decision of the Tribunal was contended to be wrong.  In any event, having looked through all the supplemental documents provided for the purposes of the full appeal (including a letter from Mr Maxham himself dated 14 January 2000 following his suspension, which shows he was then already well aware of the nature of the complaint made about his conduct at Adlers two days before, and sets out his side of the story) the majority are not persuaded that any arguable ground can be shown for any inference that the Tribunal wrongly overlooked or failed to deal with any complaint of procedural unfairness that remained material at the time of the hearing before them.  It is true these broader complaints were put forward in the Originating Application, but that was before the further comprehensive appeal process carried out by Mr Brotherwood.  This the Tribunal found as a fact to have amounted to a full rehearing; so that on established authority, even assuming (which we do not decide) that the kind of matters now sought to be relied on were such as to render the initial dismissal in this case procedurally unfair, this was remedied by the full reconsideration of the facts by Mr Brotherwood on appeal and the procedure he adopted: Louies v Coventry Hood [1990] ICR 54, 59E – F, Whitbread v Mills [1988] ICR 776, 795B.  

17	The minority conclusion is that the contentions now made by the Appellant, in conjunction with the documentary evidence, disclose defects in the Respondents’ initial dismissal procedure such that the Tribunal’s decision ought to be set aside notwithstanding the late stage of the appeal at which these points have emerged, and the case should be remitted to the Tribunal for rehearing as the only means of avoiding a potential injustice to Mr Maxham.  The more detailed reasons for this conclusion are as follows:

(1)	It is axiomatic as a matter of good industrial relations that following any investigation which establishes that a disciplinary hearing is appropriate, this should be followed by a statement of case produced and sent to the person facing the disciplinary hearing; and it is also widely accepted that anyone facing discipline should be advised beforehand what charges they are required to answer.  
(2)	It is accepted that a defective procedure can be cured at the appeal stage, as acknowledged by the Chairman in paragraph 10 of the Extended Reasons; but having identified that the procedures were defective at first base it was for the Tribunal to satisfy itself that the defect was in fact cured at the appeal stage.  In the view of the minority, the Tribunal failed to do this adequately.  
(3)	It was only at the stage of the final appeal instituted by the letter of 17 May that Mr Maxham was supplied with the necessary documentation setting out the case he was required to answer and the details of the complaints.  The cumulative deficiencies, accepted “with hindsight” by Mr Brotherwood in that letter, coupled with the other defects found by the Tribunal, raise in the minority’s view a profound doubt about the fairness of the dismissal such that a rehearing of the case before a further tribunal is warranted.

18	The result is that in accordance with our unanimous decision on the issues raised in the amended Notice of Appeal, and the majority conclusion that there are no further issues which we ought to allow to be added to it at this stage, the appeal is dismissed.