The claimant, a union representative, was accused of taking time off which had not been agreed in advance. He appealed against a warning, given to him in October 2008, for misconduct, saying that he had been given verbal permission by a manager, which she denied. The claimant then found an email in December 2008, just before his appeal was due to take place, which showed confirmation that the manager had approved his absence. The appeal was adjourned so that the respondent could check out the authenticity of the email. The respondent thought the email exchange was fraudulent and should be investigated further, the manager denied that she had received or replied to it and the claimant was suspended. Enquiries were made to the respondent's IT department, which was unable to confirm whether or not the disputed email was genuine, and the respondent came down on the side of the claimant's manager. The claimant was subsequently dismissed and an appeal was heard in July 2009 where the claimant was represented by his divisional representative. The appeal was dismissed. The ET found that the claimant had been fairly dismissed.

At the EAT, the claimant sought to argue that the ET should not have found that his dismissal for misconduct was fair because the employer's delay meant that internal IT records which might have substantiated his case were no longer available. Also, if the disciplinary procedure applicable to trade union representatives (which he was) had been applied, the practical consequence would probably have been that his union representative would have secured the IT documentation before the expiry of the period during which IT records were kept. The EAT dismissed the appeal since the claimant 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.

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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

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

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.

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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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."

1. 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.

1. 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."

1. 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.

1. 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.

1. Those are essentially the arguments that have been presented to us today but we shall say more about those in a moment.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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."

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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".

1. 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."

1. 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.

1. 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)

1. 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.

1. 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.

1. 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.

1. 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.