THE POST OFFICE v JOHN FOLEY [2000] EWCA Civ 3030

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
[2000] EWCA Civ 3030Case No Case Nos. A1/1999/0746, A1/2000/2086Venue Royal Courts of Justice, Strand, London WC2, Monday, 31st July 2000
Between
THE POST OFFICEAppellantJOHN FOLEYRespondentHSBC BANK PLC(Formerly MIDLAND BANK PLC)AppellantJOHN MADDENRespondent
Before
Lord Justice NourseLord Justice MummeryLord Justice RixMr D Bean QC and Mr R White (instructed by the Solicitor to the Post Office, Croydon) appeared on behalf of the Appellant Post Office.Mr D Reade (instructed by Messrs Simpson Millar, London SE1) appeared on behalf of the Respondent Mr Foley.Mr P McMaster (instructed by Messrs Addleshaw Booth & Co, Leeds) appeared on behalf of the Appellant HSBC Bank plc.Mr M Gill QC and Mr E Fitzpatrick (instructed by Messrs Procaccini Farrell & Co, London SW9) appeared on behalf of the Respondent Mr Madden.Date 31 July 2000

LORD JUSTICE NOURSE:

Lord

Justice Mummery will deliver the first judgment on these appeals.

LORD JUSTICE MUMMERY:

[3]Background to Appeals[4]The court expedited the hearing of these two appeals in view of the current state of uncertainty in the Employment Tribunals on some fundamental aspects of the law of unfair dismissal following two recent decisions of the Employment Appeal Tribunal: Haddon v Van Den Bergh Foods Ltd [1999] ICR 1150 (" Haddon "), which has been followed in Wilson v Ethicon [2000] IRLR 4 , but was settled while under appeal to this court; and Midland Bank plc v Madden [2000] IRLR 288 (" Madden "), from which we have heard the appeal, along with the appeal in The Post Office v Foley , an unreported case decided by the Employment Appeal Tribunal before Haddon and Madden were decided. The judgments in both Haddon and Madden are analysed in detail, in the context of both the legislative history of unfair dismissal and the development of judicial interpretation, in yet another recent decision of the Employment Appeal Tribunal: Beedell v West Ferry Printers Ltd (7th July 2000), in which judgment on behalf of the Appeal Tribunal was given by His Honour Judge Peter Clark.[5]General Introduction[6]Since Employment Tribunals throughout Great Britain decide thousands of unfair dismissal cases every month, it is crucial that uncertainty about the law to be applied by them should be dispelled as soon as possible.[7]In my judgment, the Employment Tribunals should continue to apply the law enacted in section 98(1),(2) and (4) of the Employment Rights Act 1996 ("the 1996 Act"), giving to those provisions the same interpretation as was placed for many years by this court and the Employment Appeal Tribunal on the equivalent provisions in section 57(1), (2) and (3) of the Employment Protection (Consolidation) Act 1978 ("the 1978 Act").[8]This means that for all practical purposes:[9](1)"The band or range of reasonable responses" approach to the issue of the reasonableness or unreasonableness of a dismissal, as expounded by Browne-Wilkinson J in Iceland Frozen Foods Ltd v Jones [1983] ICR 17 at 24F-25D and as approved and applied by this court (see Gilham v Kent County Council (No 2) [1985] ICR 233; Neale v Hereford & Worcester County Council [1986] ICR 471; Campion v Hamworthy Engineering Ltd [1987] ICR 966; and Morgan v Electrolux [1991] ICR 369), remains binding on this court, as well as on the Employment Tribunals and the Employment Appeal Tribunal. The disapproval of that approach in Haddon (see p.1160E-F) on the basis that(a) the expression was a "mantra" which led Employment Tribunals into applying what amounts to a perversity test of reasonableness, instead of the statutory test of reasonableness as it stands, and that(b) it prevented members of Employment Tribunals from approaching the issue of reasonableness by reference to their own judgment of what they would have done had they been the employers, is an unwarranted departure from binding authority.[10](2)The tripartite approach to(a) the reason for, and(b) the reasonableness or unreasonableness of, a dismissal for a reason relating to the conduct of the employee, as expounded by Arnold J in British Home Stores Ltd v Burchell [1980] ICR 303 at 304 and 308G-H, and as approved and applied by this court in W Waddel & Co Ltd v Tepper [1980] ICR 286, remains binding on this court, as well as on Employment Tribunals and the Employment Appeal Tribunal. Any departure from that approach indicated in Madden (for example, by suggesting that reasonable grounds for belief in the employee's misconduct and the carrying out of a reasonable investigation into the matter relate to establishing the reason for dismissal rather than to the reasonableness of the dismissal) is inconsistent with binding authority.[11]Unless and until the statutory provisions are differently interpreted by the House of Lords or are amended by an Act of Parliament, that is the law which should continue to be applied to claims for unfair dismissal. In so holding I am aware that there is a body of informed opinion which is critical of this interpretation of the 1996 Act. Those views have been comprehensively debated in the able arguments advanced on these appeals by Mr David Bean QC, Mr Reade, Mr McMaster and Mr Manjit Gill QC.[12]A reminder of the fundamental constitutional difference between the interpretation of legislation, which is a judicial function, and the enactment and amendment of legislation, which is a parliamentary function, is required in view of the number of occasions on which reference was made in the submissions to a "judicial gloss" on the legislation. As Lord Nicholls said in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 at 592E-F:
"The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature."
[13]In this case the interpretation placed by the tribunals and courts, including this court, on the provisions of the 1978 Act in the cases of Iceland Foods and Burchell has not led Parliament to amend the relevant provisions, even though Parliament has from time to time made other amendments to the law of unfair dismissal, since those authoritative rulings on interpretation were first made. So those rulings, which have been followed almost every day in almost every Employment Tribunal and on appeals for nearly 20 years, remain binding.[14]They should be applied to the two cases under appeal with the result that both appeals should be allowed and both claims for unfair dismissal fail.[15]A.The Post Office Appeal[16]Mr John Foley was employed by the Post Office as a postal worker from 18th September 1998 until 19th June 1997, when he was dismissed for a reason relating to his conduct. On 3rd November 1997 he presented a complaint of unfair dismissal to the Employment Tribunal which held, as explained in the Extended Reasons sent to the parties on 16th April 1998, that he was not unfairly dismissed. His appeal against that decision was allowed by the Employment Appeal Tribunal on 30th March 1999 and the case was remitted to the Employment Tribunal for a remedies hearing. The Post Office appeals with the permission of Lord Justice Peter Gibson.[17]The Decision of the Tribunal[18]The tribunal found that the reason for Mr Foley's dismissal was "unauthorised absence for part or whole of a duty on 16th May 1997", that that was a reason relating to conduct within section 98(2)(b) of the 1996 Act and that the decision to dismiss him for the conduct alleged, though "harsh", was reasonable pursuant to section 98(4) of the Act. It was fair. The tribunal was "mindful that we must not impose our decision upon that of a reasoned on the spot management decision". The dismissal was "within the range of reasonable responses".[19]The Facts[20]That conclusion was based on the following findings of fact.[21](1)Mr Foley was on a late shift on Friday 16th May 1997 at the Princess Royal Distribution Centre, Stonebridge Park, London NW10. The shift was due to finish at 11.00pm. His wife telephoned him at 7.30pm from home at 56 Portland Road, London W11, saying she was in a bad state of nerves and required his attention. His immediate line manager, Mr Martin Joyce, gave him permission to leave work early. He left between 7.30 and 7.45pm.[22](2)At about 8.47pm another manager, Mr Simon Kowalski, who was off duty, reported that he saw Mr Foley at the Innisfree Public House in Harrow Road, Wembley, which was about 12 minutes away from the depot, and notified Mr Joyce on his mobile phone. The late shift manager, Ms Susan Johnson, sent two managers (the indoor patrol) to the pub, but Mr Foley could not be seen.[23](3)On 20th May Ms Johnson instructed Mr Kowalski to conduct a fact-finding interview. He then passed the papers to Ms Johnson, who sent a charge letter to Mr Foley on 3rd June 1997.[24](4)On 11th and 12th June a disciplinary hearing was conducted by Ms Johnson. Mr Foley was accompanied by his trade union representative. There was a dispute about the timing of the events on 16th May. Mr Foley's case was that he was not in the pub at the time when Mr Kowalski said he had seen him. He had gone into the pub at about 8.00pm to phone for a taxi as he wished to get home early and the bus would not arrive for another 18 minutes. The taxi came at 8.20pm. According to Mrs Foley, he arrived home at 8.40pm.[25](5)Ms Johnson dismissed Mr Foley, who had a clean conduct record, for the alleged misconduct. The hearing was not, however, "conducted as fairly as it might have been". Ms Johnson had not followed up lines of inquiry with the licensee of the pub, Mr Mulvaney, who supplied a letter saying that he had called a minicab for Mr Foley at 8.00pm and that it had arrived at 8.20pm, nor with the minicab company, which supplied a document from driver number 98 indicating a time of 8.00pm.[26](6)Mr Foley appealed. His appeal, at which he was accompanied by his trade union representative, was heard by the appeals manager, Miss Susan Little, on 19th August 1997. Miss Little "considered the issues with great care and in great depth" and investigated the documentation in relation to the licensee of the pub and the minicab company. She could see no reason for disbelieving Mr Kowalski and concluded that Mr Foley was in the pub after 8.20pm. She attempted unsuccessfully to obtain more information from the minicab company about the time of the pick-up. There was uncontradicted evidence in the chairman's notes of evidence that, like Ms Johnson, she considered the range of responses to the conduct of Mr Foley before concluding that dismissal was the appropriate remedy. It was a permissible option in the Post Office Conduct Code, which provided in section 12.5 (by way of a general guide) that the possible penalties ("not automatic") for "unauthorised absence for all or part of duty" were "warning or dismissal". Her "careful conduct of the appeal hearing rectified an otherwise unfair dismissal". Mr Foley was informed on 3rd October 1997 of the decision to uphold the dismissal.[27]The Legal Position[28]An appeal from the Employment Tribunal only lies on a question of law. In my judgment, there was no error of law in the Extended Reasons for dismissing Mr Foley's claim. The Employment Appeal Tribunal was not entitled to reverse its decision.[29]The legal position is as follows:[30](1)Reason for Dismissal[31]Why did the Post Office dismiss Mr Foley?[32]The Post Office established to the satisfaction of the Employment Tribunal that the reason for the dismissal of Mr Foley related to his conduct within the meaning of section 98(2)(b), i.e. unauthorised absence from duty for part of a duty on 16th May 1997. That was the reason for dismissal in the accepted sense that it was a set of facts known to the Post Office, or a set of beliefs held by it, which caused it to dismiss Mr Foley: Devis & Sons v Atkins [1977] AC 931 at 954C.[33]There is no appeal against that finding of fact. I should, however, add that, although there was some argument about the tribunal's reference (in paragraph 25 of the Extended Reasons) to the faith that the Post Office must have in the employee giving the "real reason" for a request to be absent from work, it is clear that the tribunal proceeded on the basis that Mr Foley had given the "real reason" in stating that Mrs Foley had phoned at 7.30pm requiring his attention to her at home and that had led him to seek and obtain permission to go home. There is no suggestion in the facts found by the tribunal that Mr Foley had obtained permission to go home by giving a false reason to obtain permission to leave early.[34]This paragraph is directed not so much to the particular facts surrounding the reason for dismissal in this case as to a more general explanation of the importance of the employer's trust and confidence in his employee and to the future effect on that trust and confidence if an employee does not use his absence from duty for the purpose for which he has obtained it.[35](2)Reasonableness of Dismissal[36]In the circumstances did the Post Office act reasonably or unreasonably in treating that reason as a sufficient reason for dismissing Mr Foley?[37]The argument on this appeal has focused on the tribunal's conclusion that the Post Office acted reasonably in treating that as a sufficient reason for dismissing Mr Foley. I am unable to find any error of law in that conclusion or in the reasoning process by which the tribunal arrived at it.[38]In accordance with section 98(4) the tribunal considered all the relevant circumstances and determined the question whether the dismissal was fair or unfair in accordance with the equity and substantial merits of the case. In particular, in accordance with the approach in Burchell , the tribunal considered whether the Post Office had established reasonable grounds for its belief that Mr Foley was guilty of misconduct and that it had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.[39]Appeal Rehearing Point[40]Although the tribunal found that the disciplinary hearing by Ms Johnson was not conducted as fairly as it might have been, because she had not followed up lines of inquiry with the minicab company and the licensee of the pub, this deficiency was remedied on the appeal.[41]There is no error of law in that approach. The appeal was a rehearing and not merely a review of the unsatisfactory initial disciplinary hearing by Ms Johnson. The appeal was properly regarded as part of the overall process of terminating Mr Foley's employment: Whitbread & Co plc v Mills [1988] ICR 776 at 792G-795C; Clark v Civil Aviation Authority [1991] IRLR 412 at 415 paras 22, 25 and 26. That process constituted an investigation which was reasonable in all the circumstances. The rehearing was conducted thoroughly by Miss Little. She investigated the documentation with the minicab company and the licensee of the Innisfree Public House and weighed that against the evidence of Mr Kowalski, whom she had no reason to disbelieve.[42]Range of Reasonable Responses Approach[43]The Employment Tribunal then followed, as it was bound by authority to do, the Iceland Foods approach and held that, although it was of the view that the decision to dismiss was "harsh", it was not entitled to substitute itself for the employer and impose its "decision upon that of a reasoned on the spot management decision (para 23)". Instead it asked, as required by authority, whether the dismissal was "within the range of reasonable responses for this employer to have dismissed this employee". It found that it was.[44]That finding is not erroneous in law, unless it can be characterised by an appellate body as one which no reasonable tribunal could have reached. That is not, however, the basis on which Mr Reade, on behalf of Mr Foley, attacked the decision of the tribunal. His submission, based on Haddon , was that the tribunal ought to have started from the position of considering what it would do in the circumstances and then consider on the objective test in section 98(4) whether the decision to dismiss was reasonable or unreasonable. It should not simply have applied what was described in Haddon as the "mantra" (i.e. the band of reasonable responses and the warning against substituting its own judgment for that of the employer) which drove Employment Tribunals to subvert the provisions of section 98 and in effect apply a more extreme perversity test.[45]If the tribunal had taken the approach in Haddon it would have given effect to its express view that the decision to dismiss was "harsh" and it would have concluded that the dismissal of Mr Foley, who had a clean record, for an offence which was not gross misconduct, was manifestly unreasonable.[46]I would reject these submissions on the perversity point and on the substitution point as contrary to authority binding on this court.[47]Perversity Point[48]It was made clear in Iceland Foods at p.25B-D that the provisions of section 57(3) of the 1978 Act (which were re-enacted in section 98(4) of the 1996 Act) did not require "such a high degree of unreasonableness to be shown that nothing short of a perverse decision to dismiss can be held to be unfair within the section". The tribunals were advised to follow the formulation of the band of reasonable responses approach instead.[49]If an Employment Tribunal in any particular case misinterprets or misapplies that approach, so as to amount to a requirement of a perverse decision to dismiss, that would be an error of law with which an appellate body could interfere.[50]The range of reasonable responses approach does not, however, become one of perversity nor is it rendered "unhelpful" by the fact that there may be extremes and that (as observed in Haddon at p.1160D) "dismissal is the ultimate sanction". Further, that approach is not in practice required in every case. There will be cases in which there is no band or range to consider. If, for example, an employee, without good cause, deliberately sets fire to his employer's factory and it is burnt to the ground, dismissal is the only reasonable response. If an employee is dismissed for politely saying "Good morning" to his line manager, that would be an unreasonable response. But in between those extreme cases there will be cases where there is room for reasonable disagreement among reasonable employers as to whether dismissal for the particular misconduct is a reasonable or an unreasonable response. In those cases it is helpful for the tribunal to consider "the range of reasonable responses".[51]Substitution Point[52]It was also made clear in Iceland Foods at pp.24G-25B that the members of the tribunal must not simply consider whether they personally think that the dismissal is fair and they must not substitute their decision as to what was the right course to adopt for that of the employer. Their proper function is to determine whether the decision to dismiss the employee fell within the band of reasonable responses "which a reasonable employer might have adopted".[53]In one sense it is true that, if the application of that approach leads the members of the tribunal to conclude that the dismissal was unfair, they are in effect substituting their judgment for that of the employer. But that process must always be conducted by reference to the objective standards of the hypothetical reasonable employer which are imported by the statutory references to "reasonably or unreasonably" and not by reference to their own subjective views of what they would in fact have done as an employer in the same circumstances. In other words, although the members of the tribunal can substitute their decision for that of the employer, that decision must not be reached by a process of substituting themselves for the employer and forming an opinion of what they would have done had they been the employer, which they were not.[54]B.The Madden Appeal[55]Mr John Madden was employed by the Midland Bank (now HSBC Bank plc) from September 1986. He was a lending officer (grade 4) at the date when he was summarily dismissed on 24th October 1997 for a reason relating to his conduct. He presented a complaint of unfair dismissal to the Employment Tribunal on 21st January 1998. The tribunal unanimously held that he was unfairly dismissed for the reasons set out in the Extended Reasons sent to the parties on 17th July 1998. The Employment Appeal Tribunal dismissed the appeal on 7th March 2000.[56]The Employment Tribunal held that a sufficient investigation into the alleged misconduct of Mr Madden was not carried out in all the circumstances before the decision was made to dismiss him, that more inquiries and investigations should have been made and that the decision to dismiss was not taken on reasonable grounds and was therefore unfair.[57]The Facts[58]The conclusions of the tribunal were based on the following findings of fact.[59](1)Mr Madden was regarded as a good and trustworthy employee at the Enfield Town branch of the Bank. In June 1996 he was transferred from that branch to the Palmers Green branch, but continued to work one Saturday in four at Enfield Town. He had an unblemished record.[60](2)In June and July 1997 three customers of the Bank had their debit cards misappropriated when they were despatched for collection by them at their branches. The cards were used to obtain goods by deception. Two of the customers, Mr Wood and Mr Clark, expected to collect their cards at the Enfield Town branch and the third, Mr Porter, expected to collect his card at the Palmer's Green branch.[61](3)In July 1997 a bank employee made unauthorised inquiries through the Bank's internal Nixdorf computer system about the status of each of the three customers' accounts to which the debit cards related. The inquiries coincided with the fraudulent use of the cards.[62](4)Mr Madden was in the relevant branches when the cards might have been misappropriated and he was the only member of the staff who was at the respective branches when all three inquiries were made by accessing the internal Nixdorf computer.[63](5)On 1st September 1997 Mr Madden was arrested. He was later released without charge. He was suspended on full pay pending further investigations.[64](6)On 7th October an investigation report was made by Mr C J Murphy, an investigating officer with Midland Security. He reported that the evidence indicated that Mr Madden may have had an involvement in the thefts, although he consistently denied taking the cards or making unauthorised computer inquiries on the customers' accounts.[65](7)On 24th October 1997 a disciplinary hearing was held by the area manager, Mr Brian Fielder. Mr Madden was represented by a BIFU official. At the end of the hearing he was summarily dismissed on the ground that the Bank had a reasonable belief that he had been involved in the misappropriation of the cards which had been used fraudulently and that trust had irretrievably broken down.[66](8)Mr Madden exercised his right of appeal, but did not proceed with it. His appeal was dismissed in his absence.[67]The Legal Position[68]In my judgment there was an error of law in the Extended Reasons given by the Employment Tribunal for concluding that Mr Madden was unfairly dismissed. The Employment Appeal Tribunal ought to have allowed the appeal and dismissed Mr Madden's claim.[69]In view of the earlier discussion of the relevant statutory provisions and case law the legal position can be briefly stated as follows:[70](1)Reason for Dismissal[71]Why did the Bank dismiss Mr Madden?[72]There was no dispute that the reason for the dismissal of Mr Madden related to his conduct within the meaning of section 98(2)(b) of the 1996 Act, i.e. the Bank's reasonable belief that he had been involved in the misappropriation of the three debit cards which were subsequently used fraudulently and that that led to an irretrievable breakdown in trust between the Bank and Mr Madden.[73](2)Reasonableness of the Dismissal[74]In the circumstances did the Bank act reasonably or unreasonably in treating that reason as a sufficient reason for dismissing Mr Madden?[75]In holding that the dismissal of Mr Madden for that reason was unreasonable the Employment Tribunal erred in law. It did not correctly apply the law as laid down in the authorities already discussed in the Post Office case.[76]It impermissibly substituted itself as employer in place of the Bank in assessing the quality and weight of the evidence before Mr Fielder, principally in the form of the investigating officer's report. Instead it should have asked whether, by the standards of the reasonable employer, the Bank had established reasonable grounds for its belief that Mr Madden was guilty of misconduct and whether the Bank's investigation into the matter was reasonable in the circumstances.[77]The extent of the tribunal's substitution of itself as employer in place of the Bank, rather than taking a view of the matter from the standpoint of the reasonable employer, is evident from the tenor of the views expressed by the tribunal on the quality and weight of the available evidence against Mr Madden. I refer to the tribunal's cumulative critical comments on the Bank's internal investigation by Mr Murphy, on the disciplinary hearing by Mr Fielder and on the probative value of the material on which Mr Fielder based the summary dismissal: that "there was no clear culprit for the misappropriation of the cards"; that there was "no firm evidence of the precise dates on which the cards were taken"; that there was "no direct evidence that Mr Madden had accessed the Nixdorf system"; that there was no investigation of the "personal or financial affairs" of other members of the staff; that no account was taken of the nature of the goods bought with the stolen cards; that Mr Fielder failed to take account of the fact that a man in Mr Madden's financial and career position would not have jeopardised all for such a "relatively paltry theft"; that "the facts of the case should have produced more than reasonable doubt in Mr Fielder's mind"; that the investigators had closed their minds to any possibility other than the guilt of Mr Madden; that Mr Fielder "came to a hasty conclusion that Mr Madden was probably guilty" and was content to accept the report of the investigators too readily and uncritically; and that Mr Fielder's decision to dismiss Mr Madden, who had a stainless record of 11 years service, would effectively ruin his career and was not taken on reasonable grounds.[78]In my judgment no reasonable tribunal, properly applying the approach in Burchell and Iceland Foods to the facts, could have concluded either(a) that the Bank had failed to conduct such investigation into the matter as was reasonable in all the circumstances or(b) that dismissal for that reason was outside the range of reasonable responses.[79]Instead of determining whether the Bank had made reasonable investigations into the matter and whether it had acted within the range of responses of a reasonable employer, the tribunal in effect decided that, had it been the employer, it would not have been satisfied by the evidence that Mr Madden was involved in the misappropriation of the debit cards or their fraudulent use and would not have dismissed him. The tribunal focused on the insufficiency of the evidence to prove to its satisfaction that Mr Madden was guilty of misconduct rather than on whether the Bank's investigation into his alleged misconduct was a reasonable investigation.[80]This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an Employment Tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an appeal against, the merits of the employer's decision to dismiss. The employer, not the tribunal, is the proper person to conduct the investigation into the alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.[81]I would accordingly allow both appeals and dismiss the complaints of unfair dismissal.

LORD JUSTICE RIX: I agree with the judgment of Lord Justice Mummery which I have had the advantage of reading in draft, and only wish to add a few words on what has been call the "substitution" point.

[83]The possibility of an Employment Tribunal or of the Employment Appeal Tribunal substituting its own view for that of the employer in question could, in theory, arise in at least three different situations:[84](1)Either tribunal may be tempted to substitute its own views as to the correct conclusion to be arrived at as to the employee's responsibility for the misconduct complained of. (2)The Employment Tribunal is charged under section 98(4) with the determination of the question whether the dismissal is fair or unfair and, in so doing, has to decide whether the employer acted reasonably or unreasonably in treating the section 98(2) reason as a sufficient reason for dismissing the employee.[85](3)The Employment Appeal Tribunal may be tempted to substitute its own views as to the section 98(4) question of reasonableness or unreasonableness.[86]In my judgment only the second of those three alternatives is legitimate. As a matter of authority binding in this court, that determination required by statute is to be answered by the Employment Tribunal with the assistance of the "band of reasonable responses" approach set out in the judgment of Browne-Wilkinson J in Iceland Frozen Foods Ltd v Jones [1983] ICR 17 .[87]The first and third of those three alternatives are illegitimate. The reason why the first alternative is illegitimate was well explained by Arnold J in British Home Stores Ltd v Burchell [1980] ICR 303 at 304. The reason why the third alternative is illegitimate is because the Employment Appeal Tribunal is only entitled to differ from the Employment Tribunal on a question of law. Therefore, it is only in a very exceptional case, where an Employment Tribunal can be said to have come to a perverse conclusion, that the Employment Appeal Tribunal can interfere in the Employment Tribunal's determination as to the section 98(4) test, a determination which is essentially a question of fact. That is authoritatively stated in Gilham v Kent County Council (No. 2) [1985] ICR 233 and in Neale v Hereford & Worcester County Council [1986] ICR 471.

LORD JUSTICE NOURSE: I have had the advantage of reading in draft the judgment of Lord Justice Mummery. I agree with it and would allow both appeals accordingly.

Order

[89]Both appeals allowed and both claims for unfair dismissal dismissed; Post Office to have half the costs of its appeal; Mr Madden's application for leave to appeal to the House of Lords refused.

Cited in 9 later judgments