The claimant had been dismissed after several allegations of aggressive behaviour towards staff which had been investigated internally. The claimant appealed that decision and the manager handling the matter interviewed several of the staff involved, before and after the appeal hearing, but without reference to the claimant. The ET dismissed the claim and, on appeal, the EAT refused an adjournment and judged, under Rule 3(10), that the appeal was an attempt to re-argue the facts. Mummery LJ reached the same conclusion on paper.

However, in this judgment Sir Stephen Sedley allowed the application as the handling of the appeal "may very well have represented a denial of natural justice" but as the appeal was against a Rule 3(10) he could only do so the issue that was before the EAT of whether basis that there was a triable appeal at all.

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Case No: A2/2012/2006

Neutral Citation Number: [2013] EWCA Civ 634

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice

Strand, London, WC2A 2LL

Friday, 19th April 2013

Before:

SIR STEPHEN SEDLEY

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ADEGBOLA (Appellant)

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MARKS & SPENCER PLC (Respondent)

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(DAR Transcript of WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

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Mr David Stephenson (instructed by A & A Solicitors) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.

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Judgment (As Approved by the Court)

Crown Copyright©

Sir Stephen Sedley:

1. This is a renewed application for permission to appeal presented by Mr David Stephenson on behalf of the applicant, Mrs Adegbola. Mrs Adegbola was dismissed by Marks & Spencer from her job with them as a customer assistant, following a final written warning against which she had not appealed. The warning had been for aggressive conduct towards a fellow employee. There followed two incidents, allegedly of aggressive behaviour towards a manager and of the use by the sister-in-law of her discount card to reclaim VAT. These allegations were found proved by Mr McElligott, an officer of Marks & Spencer who, along with Ms Steven, had been involved in the earlier disciplinary proceedings.

1. The appeal against the dismissal decision came before Ms Marsland on 15 December 2010. What then happened is summarised in paragraph 26 by the Employment Tribunal:

"Following the appeal hearing Ms Marsland undertook further investigations which included interviewing Shirley Beckham, Ms Steven, Ms Oldfield, Mr Chapple, Ms M McElligott, Ms Cairns and Beverley Marshall (notes on pages 201-210, 212-226) prior to compiling her appeal report (pages 230-238) in which she concluded that it was appropriate to uphold the decision to dismiss the Claimant."

1. In coming to their conclusion that the dismissal had been fair, the tribunal said the following 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."

1. There is an obvious point to be taken, and Mr Stephenson takes it: that what this sequence of events discloses, far from showing that there had been fair conduct of the appeal sufficient to cure any prior defect, was itself a deficient and unfair procedure. It appears from the face of the Employment Tribunal's reasons that evidence of a quite extensive kind had been taken by the person conducting the appeal after the hearing and without any reference back to the applicant for her response to what had been subsequently told to Ms Marsland.

1. I was not sure, however, that what appeared on the face of the Tribunal's reasons would necessarily demonstrate a vice in the procedure. I asked therefore to be shown the notes identified as pages 201 to 210 and 212 to 226 of the bundle before the Employment Tribunal. Notes were supplied to me following a short adjournment. I had believed that they were those pages, but Mr Stephenson tells me, very properly, that they are not. What they appear to be, though they are not paginated in the same way, are the text of the appeal report. It without doubt recounts a series of interviews in which a number of the witnesses mentioned have clearly contributed comments and information to the appeal process in the absence of Mrs Adegbola. That seems to me to be sufficient to give substance to the suggestion that what was done was not innocuous but may very well have represented a denial of natural justice.

1. When the matter came on appeal to the EAT, Judge Shanks refused an adjournment when Mrs Adegbola found herself unrepresented at the last minute, and proceeded, as I think he was entitled to do, with a rule 3(10) hearing, which was the purpose for which the case was listed before him. In a short judgment he held that the proposed appeal was no more than an attempt to re-argue facts. The same view was taken by Mummery LJ when he considered this application on the papers. But, for the reason I have given, it seems to me that both decisions may have overlooked a clear issue of law and one which gives the applicant a real prospect of success.

1. Mr Stephenson additionally wishes to keep at least one of the grounds of appeal open. That is the attempt to challenge retrospectively the final written warning; not on the ground that it was not justified in substance (he accepts that that is water under the bridge and cannot now be challenged) but on the ground, if he can make this good, that it was made in effect without jurisdiction and without power. There is authority which appears to support him in that endeavour. Whether this is an appropriate case in which to pursue the endeavour, I doubt; but I am not going to shut Mr Stephenson out from attempting it.

1. What I am able to do in these circumstances is limited. If it were a judicial review proceeding, I would be able to give leave on the spot and let the application proceed either in this court or the court below. There is no equivalent power, unfortunately, in relation to appeals against rule 3(10) decisions. What I have to do, therefore, is to give permission to appeal on the issue, which was the only one before the EAT, whether there was a triable appeal at all. It may very well be that having read what I have said in this judgment, Marks & Spencer will think that the wise course and the economical one, is to concede the appeal and let the argument go back before the EAT to be heard as a proper appeal inter partes on the issue that I have identified, and, if he considers it right to pursue it, with the issue Mr Stephenson has identified.

1. That, however, is a matter for the intended respondent. My function is limited to considering the application for permission to appeal and, having done so, I grant it.

Order: Application granted