Welsh v Post Office [1998] UKEAT 1139_97_0105

EAT
Welsh v Post Office
[1998] UKEAT 1139_97_0105 · 1998-03-19
MR JUSTICE BELL : This an appeal by Mr Walsh against a decision of the Industrial Tribunal held at London (North). The Decision entered in the Register on 12 June 1997, was that the Appellant was fairly dismissed for a reason related to his conduct.The Appellant commenced employment with the Respondent, the Post Office, on 4 August 1986, as a postman. He was dismissed, as the Industrial Tribunal in due course found, with effect from 19 October 1996. He presented an Originating Application on 6 November 1996 saying that he was unfairly dismissed so far he was concerned because he did not do anything wrong. He was only carrying out his manager's instructions.The Post Office's Notice of Appearance alleged that the Appellant had on 23 July 1996 committed the criminal and disciplinary offence of wilfully delaying the mail, a serious matter when all Post Office employees are charged with safeguarding the mail and giving it prompt and accurate treatment.In the light of the extensive criticisms of the Industrial Tribunal's Extended Reasons for its decision, it is only right that we should set out those reasons fairly fully.Paragraph 1 summarised the nature of the Appellant/Applicant's claim, and paragraph 2(i) referred to some terms of his employment.The relevant parts of paragraphs 2(ii) to (ix) read as follows:
"(ii) On 23 July 1996 the applicant was working on an afternoon shift at the NW1 London delivery office of the Respondent, performing overtime duties. The delivery manager responsible for preparing work for overtime postmen on that afternoon was Mr Barry Aldridge. At around 2pm the Applicant was given a bundle of mail for delivery to a new residential development at Juniper Crescent, NW1. The relevant docket was signed for this delivery and the Applicant left the delivery office in a van. At 4.28pm the Applicant returned the van to the office, and was recorded as finishing his overtime shift at 5pm.
(iii) On the following day Mr Aldridge discovered, at around 6am, a bundle of mail in the delivery office at a location known as "Town Corner Bay". That bundle of mail was for delivery to Juniper Crescent, NW1, and was recognised by Mr Aldridge as the bundle which he had prepared for delivery the previous afternoon to be delivered by the Applicant. Mr Aldridge then made copies of the items in the bundle.(iv) At around 7am following the discovery of the bundle of mail Mr Aldridge spoke with the Applicant to ask why the mail had not been delivered the day before. Following this conversation, Mr Aldridge convened an 'investigatory interview' which was held on the morning of the next day, 25 July 1996. It is generally agreed that this interview was a distinctly 'one-sided' affair, with Mr Aldridge seeking answers to specific questions, and with little or no opportunity given to the Applicant to raise matters of his own. Notes were made of what transpired at that "investigatory interview". Subsequent to this, Mr Aldridge referred the matter to a more senior member of the management staff, Mr Trevor Lazaro. The decision to refer the matter to Mr Lazaro was made in order that the matter could be dealt with by a member of management at an appropriate level of authority, as provided for in the Royal Mail Conduct Code. The Applicant was notified by Mr Aldridge in writing that this had been done. (v) Eventually, on 12 August 1996 an interview was convened by Mr Lazaro to deal with the matter referred by Mr Aldridge. After steps had been taken to ensure that the Applicant was in possession of the notes of his earlier meeting with Mr Aldridge, Mr Lazaro set out the reasons for, and basis of, the meeting. The Applicant was then asked about the overtime shift on 23 July 1996, and about the bundle containing mail for delivery to Juniper Crescent, NW1. He accepted that he had taken the bundle for delivery, and claimed that he had gone to Juniper Crescent, but had been unable to make the delivery. He agreed that he had then brought the bundle of mail back to the delivery office, but had not endorsed it as "undeliverable", which would have been the normal expected action in such a situation. His explanation was that he 'was running late so .... put it on sorting'.(vi) Questions were also asked about an alleged refusal to deliver mail to Juniper Crescent, on the basis that such items should have been on a 'walk'. It also emerged that another employee, Mr John Redhead, might have something to add by way of information relating to the investigation. In addition, conflicting versions began to emerge about what instructions, if any, had been specifically given to the Applicant in respect of deliveries at Juniper Crescent, including a conversation in the delivery office on the afternoon of 23 July 1996 which might have been overheard by another employee, Mr Patel. In the light of these matters and a number of other points raised during the interview, Mr Lazaro announced that he would make further investigation, and would communicate the outcome of such further investigation at the earliest opportunity."We interpose to explain that the Appellant/Applicant's account was that Mr Aldridge had told him to deliver the entire bundle of mail to one address, but he could not get in. Mr Aldridge's account was that he gave clear instructions to the Appellant that the mail was for a number of addresses. He said that he explained to the Appellant how the mail was to be delivered.The Tribunal's reasons continued:
"(vii) During the course of the following month Mr Lazaro made further enquiries with Mr Redhead, Mr Patel, and again with Mr Aldridge. He also sought information from the Personnel department concerning the Applicant's work and disciplinary record, together with details about van movements and relevant delivery dockets for 23 July 1996. A separate dispute also erupted during this period over the accuracy of the notes provided in relation to the earlier meeting between the Applicant and Mr Aldridge - a matter which was dealt with by Mr Dulieu in correspondence with representatives of the trade union concerned (the Communication Workers Union). In the light of the interview with the Applicant on 12 August 1996, together with his further investigation subsequently, Mr Lazaro formed the view that the Applicant had been guilty of the offence of 'wilful delay of mail', an offence under the Code of Practice designated as 'gross misconduct'. He further came to the decision that the Applicant should be dismissed with notice, terminating on 12 October 1996, and communicated this in writing by letter dated 20 September 1996.
(viii) After receiving his letter of dismissal from Mr Lazaro, the Applicant exercised, through his trade union representative, his right of appeal, in accordance with Post Office procedures and as indicated to him in the same letter of 20 September 1996.(ix) An appeal hearing was convened by Ms Jean Guise, the Respondent's Appeals Manager, on 2 October 1996. By the time of that hearing, the Applicant and Mr Andy Curran, his trade union representative, had been furnished with a variety of documentation listed in a letter to Mr Curran. The appeal hearing took the form of a re-hearing, and lasted for around one hour and 20 minutes, during which time it is clear that a highly charged atmosphere prevailed A number of issues were raised which Ms Guise considered to be in need of further enquiry. In consequence of this, Ms Guise undertook a number of 'post-appeal enquiries', including a site visit to Juniper Crescent, NW1, and further interviews with Mr Aldridge, Mr Lazaro, Mr Redhead and Mr Patel. Ms Guise also put a number of points arising out of her 'post-appeal enquiries' to Mr Welsh, by way of a letter dated 4 October 1996, to which a reply was received dated 8 October 1996. Finally, having completed this process, Ms Guise wrote to the Applicant on 17 October 1996 informing him that she could find no ground on which to change the decision made by Mr Lazaro. She therefore turned down the appeal, and confirmed the dismissal of the Applicant. Payment of wages was arranged up until 19 October 1996 (i.e. beyond the previous notified date of 12 October 1996)."In the light of those findings of fact, the Tribunal decided that the Appellant was dismissed with effect from 19 October 1996, and that the reason for dismissal was "wilful delay of mail", which was a reason relating to his conduct within the meaning of Section 98(2)(b) of the Employment Rights Act 1996. The Tribunal reminded itself of the provisions of section 98(4) relating to the determination of the question of whether the dismissal was fair or unfair.The Tribunal then reached conclusions as follows:
"6 The Tribunal is of the view that the Respondent, through the person of the manager who decided upon the Applicant's dismissal, Mr Lazaro, genuinely held the view that the Applicant had been guilty of wilful delay of mail in not making delivery of the bundle of mail to Juniper Crescent, NW1, on the afternoon of 23 July 1996.
The Respondent formed this view on the basis of a reasonable investigation into the circumstances. In reaching that view, the Tribunal rejects the submission made on behalf of the Applicant that Mr Lazaro did nothing more than accept and 'rubber-stamp' a version of events prepared by Mr Aldridge in a biased manner.A substantial number of matters were raised on behalf of the Applicant during the course of evidence with a view to suggesting that Mr Lazaro failed to address particular allegedly 'key' issues during his investigatory process. The Tribunal finds that most of these matters were, at best, marginal and, at worst, 'red herrings' in relation to, the central question under investigation. In so far as Mr Lazaro was investigating an apparent 'wilful delay of mail', the Tribunal finds that his approach was consistent, balanced, and as full as could be expected in the circumstances. Where there was a conflict between the versions given by the Applicant and by Mr Aldridge, this was recognised, and Mr Lazaro made clear in his evidence that, weighing the two together, he accepted the version given by Mr Aldridge in preference to that furnished by the Applicant.The Tribunal is further of the view that, having formed his view that the Applicant had committed an act of 'gross misconduct', Mr Lazaro's decision to dismiss with notice was within the band of reasonable responses open to an employer in the position of the Post Office. It follows, therefore, that the Tribunal considers Mr Lazaro's decision to dismiss the Applicant to have been reasonable.7. Even if the Tribunal had found Mr Lazaro's actions to have been unreasonable, for the kind of reasons urged upon it by the Applicant's representative, the appeal process conducted by Ms Guise in October 1996 would, as carried out, have been capable of remedying any such shortcoming in this case. That, however, is not a matter of concern in these circumstances, since the Tribunal finds the original decision to dismiss to have been fair, and the procedures adopted subsequent to that decision did nothing to undermine or place in question the integrity of Mr Lazaro or the reasonableness of his actions."Those conclusions led the Tribunal to the unanimous decision that the Appellant was fairly dismissed for a reason relating to his conduct.The first limb of Mr Neaman's attack on the Industrial Tribunal's Decision was the contention that its Extended Reasons do not contain a sufficient account of its reasoning and did not tell the Appellant why he had lost.We were referred to a number of authorities on the extent of the need for an Industrial Tribunal to give reasons for its decision.In U.C.A.T.T. v. Brain [1981] I.C.R. 542 , at page 551 D to F Donaldson L.J., referring to a criticism of the way in which the Industrial Tribunal had formulated its reasons said:
"Industrial tribunal's reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law. This was a reserved decision, but in practice they are more usually given off the cuff, and by that I do not mean to say without thought but I do mean extempore, to the parties present in court by people who, though lawyers, are not professional judges. The reasons are then recorded and no doubt tidied up for differences between spoken English and written English. But their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which reasons are given."
In Meek v. City of Birmingham District Council [1987] IRLR 250 , at page 251, paragraph 8, Bingham L.J. said:
"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted."
Sir John Donaldson, by then Master of the Rolls, presided and agreed.In Hampson v. Department of Education and Science [1989] I.C.R.193 , at page 194, Balcombe L.J. said:
"When an industrial tribunal is required to give full reasons for its decision, it should, as Bingham L.J. said in Meek v. City of Birmingham District Council , give reasons sufficient to explain to the parties why they have won or lost."
Mr Neaman's written submissions made detailed criticisms of the form of the Tribunal's Extended Reasons in this case. We reject most of these as matters of no substance. On the face of it the Tribunal gave clear reasons for its decision and did tell the Appellant why he had lost. The Decision set out the factual history in some detail. It set out the nature of the allegation against the Appellant and the Respondent's enquiries into it. The only sensible construction of the Tribunal's apparently full conclusions is that it held that Mr Lazaro's enquiry was fair, and that his view that the Appellant had committed an act of gross misconduct was fairly held, and that his decision to dismiss the Appellant with notice was within the band of reasonable responses open to the Respondent. It held that even if Mr Lazaro's actions had been unreasonable, the appeal process, as carried out, would have been capable of remedying ant shortcomings.Mr Neaman referred us to British Home Stores v. Burchell [1978] IRLR 379 , in which Arnold J., giving the judgment of the Employment Appeal Tribunal, said at page 380, paragraph 2:
" What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further."
Mr Neaman accepted that that case gave only a guideline approach and that a Tribunal would not necessarily err in law if it did not take that approach; but he argued that the Tribunal purported to follow the BHS v.Buchell guide but missed out the second element. We disagree. The Tribunal clearly found that in accepting Mr Aldridge's version of matters and forming the view that the Appellant had committed an act of misconduct, Mr Lazaros's approach was consistent, balanced and as full as could be expected, and his decision was reasonable. The Tribunal could hardly have come to these conclusions unless it had decided that Mr Lazaro, and therefore the Respondent, had in his mind reasonable grounds upon which to sustain his belief of the Appellant's misconduct.However, the real weight of Mr Neaman's argument that the Tribunal's reasons were inadequate is that they gave no hint at all of his principal arguments on the Appellant/Applicant's behalf, let alone any reasons for rejecting them. Those principal arguments were, firstly, that Mr Lazaro's enquiry was conducted in breach of the rules of natural justice in that he took account of, or at least had before him, potentially relevant material which was not disclosed to the Appellant; secondly, that Ms Guise conducted the appeal in breach of the rules of natural justice because she took account of, or at least had before her, potentially relevant material which was not disclosed to the Appellant; and, thirdly, that while a complete rehearing before Ms Guise might satisfy the requirements of natural justice, where there was a right of appeal from an original decision, the Appellant was entitled to natural justice both before the original tribunal and the appellate tribunal.The Industrial Tribunal in the present case might have decided that there was nothing in any of these points. It might, for instance, have taken account of the criticisms of Mr Lazaro's enquiry, but still found it fair, Mr Neaman said. But, if so, the Appellant was entitled to know that that was the Tribunal's view and he was entitled to know why it was the Tribunal's view. The reasons given might be economically expressed but it was not enough to say that "most of [the matters raised on behalf of the Applicant] were, at least, marginal and at worst "red herrings" in relation to the central question under investigation". Indeed it was doubtful whether that part of the Tribunal's reasons related to the three arguments which we have just summarised. So the Appellant could not tell whether the Tribunal might have erred in law in its consideration of the substantial arguments made on his behalf.The basis of the claim of breach of natural justice so far as Mr Lazaro's enquiry is concerned, was expressed in some detail by Mr Neaman on the hearing of this appeal. The essence of it is a claim that, unknown to the Appellant until it came out at the Tribunal hearing, Mr Lazaro had interviewed Mr Aldridge before his own enquiry, and he had received a detailed memorandum from Mr Aldridge, giving his account of relevant events, which was not disclosed to the Appellant.In addition Mr Lazaro had interviewed two witnesses, Mr Redhead and Mr Patel. Mr Redhead supported the Appellant's account of matters, and contradicted Mr Aldridges's account, on a detail of potential relevance to credibility; but Mr Lazaro did not tell the Appellant what Mr Redhead had said. Mr Lazaro's file note of what Mr Patel had told him on a matter of detail alleged to be relevant to the credibility of Mr Aldridge, was later said by Mr Patel to be wrong; but the Appellant was not told that.It might be that Mr Lazaro did not believe Mr Redhead and that he was confident that he had heard Mr Patel aright. But the Appellant and his representative at Mr Lazaro's enquiry were entitled to know what Mr Redhead had said, and of Mr Patel's retraction, and of Mr Aldridge's memo, to use as they wished at Mr Lazaro's enquiry.The Industrial Tribunal was seized of these matters which were raised by Mr Neaman, but it did not advert to them in its reasons.The basis of the claim of breach of natural justice so far as the appeal process conducted by Ms Guise is concerned is that Ms Guise carried out extensive enquiries after the hearing of the appeal and before giving her decision. They are listed at page 80 of the bundle of documents prepared for the Industrial Tribunal hearing, under the heading "Post-appeal Enquiries". They include interviews with Mr Aldridge, Mr Lazaro, Mr Redhead and Mr Patel, and further interviews with Mr Aldridge and Mr Lazaro. They include various documents including letters to the Appellant about the further enquiries, and the Appellant's replies. Ms Guise made a visit to Juniper Crescent. Although Ms Guise wrote two letters to the Appellant giving him the opportunity to comment on certain matters, Mr Neaman makes the point that it was not for Ms Guise to decide what she wanted his comments on. Something which did not appear to be relevant and was not, therefore, brought to the Appellant's attention, might be relevant and made to appear so if the Appellant was told of it.Among other matters, Mr Zuke, for the Respondent, took issue with the factual accuracy of some of the detailed points made by Mr Neaman, but we are in no position to resolve such issues. He contended that any failings in Mr Lazaro's procedures were put right by Ms Guise. Again we really can not reach a confident decision about that on the information before us. He points out that the Industrial Tribunal heard Mr Neaman's arguments and since it clearly thought that Mr Lazaro's and Ms Guise's enquiries were fair, it clearly rejected them. This would be hardly surprising when the case against the Appellant of "wilful delay of mail" was overwhelming and his case that Mr Aldridge instructed him to deliver a bundle of letters addressed to different addresses, to one address, was patently unacceptable.We have borne all Mr Zuke's points in mind, and we take due account of the reality that disciplinary and appeal tribunals, even conducted by large employers like the Respondent, can not be expected to follow the carefully developed procedures which a court would follow.However, in our judgment, the criticisms of the procedure followed by Mr Lazaro and Ms Guise, made by Mr Neaman, are on the face of them substantial criticisms which merited reasoned adjudication by the Industrial Tribunal. We can not find any such reasoned adjudication in the Tribunal's Extended Reasons and we can not therefore judge whether its approach to the criticisms, assuming that it took them on board, was sound in law.It follows that in our judgment this appeal must be allowed and the Appellant's application must be remitted for hearing and decision by a freshly constituted Industrial Tribunal.We must, however, deal with Mr Neaman's third main point: that even if the appeal to Ms Guise satisfied the requirements of natural justice it could not correct the effect of any lack of natural justice in the enquiry conducted by Mr Lazaro.Mr Neaman's argument to this effect was founded on dicta of Megarry J. in Leary v. National Union of Vehicle Builders [1971] 1 Ch.34 . Mr Leary had been excluded from membership of the union and his appeals against exclusion failed. His services as area organiser were terminated. He sought declarations and injunctions in respect of these matters.At pages 48 G to 49 F, Megarry J. said:
"Now in the present case the hearing by the appeals council seems to me to have been in substance a complete rehearing, with the witnesses called and heard, and complete liberty of action for the plaintiff to present his case in full. Indeed, the members of the quite differently constituted branch committee might well have been put in some practical difficulty if they had been required to devote two days to disposing of the case. Nevertheless, it was not to the appeals council that the rules confided the issue of expulsion or no. It may be that the matter was properly brought before the appeals council by the combined effect of rule 2 (13), rule 6(1) and the decision of the executive committee: but any such jurisdiction is merely appellate. If a man has never had a fair trial by the appropriate trial body, is it open to an appellate body to discard its appellate functions and itself give the man the fair trial that he has never had?
I very much doubt the existence of any such doctrine. Central bodies and local bodies often differ much in their views and approach: and the evidence before me certainly does not suggest that this is a union free from any such differences. Suppose the case of a member whose activities have pleased some of his fellow members in the locality but have displeased headquarters and other branches. Suppose further that in his absence, and so without hearing his explanations, a local committee is persuaded to expel him. Is it any answer to his complaint that he has not received the benefit of natural justice to say 'Never mind, one of the central bodies will treat your appeal as if it were an initial trial?' Can he not say 'I want to be tried properly and fairly by the only body with power under the rules to try me in the first place, namely, the local committee?' I appreciate that the appeals council is composed of members elected from each of the union's 12 divisions, and is not an emanation of the N.E.C. or other central body: but I do not think that this affects the point.That is not all. If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right of appeal to another body from the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, though not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity; and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body."Mr Neaman would particularly like us to observe what he urged to be a principle of general application set out in the last paragraph, and even more, the last sentence which we have quoted, but he very fairly referred us to Calvin v. Carr [1980] AC 574 which involved an action against the stewards and appeal committee of the Australian Jockey Club which reached the Privy Council. Lord Wilberforce referred to a number of decisions which it appeared difficult to resile, before saying at pages 592C to 593D:
"Although, as will appear, some of the suggested inconsistencies of decisions disappear, or at least diminish, on analysis, their Lordships recognise and indeed assert that no clear and absolute rule can be laid down on the question whether defects in natural justice appearing at an original hearing, whether administrative or quasi-judicial, can be 'cured' through appeal proceedings. The situations in which this issue arises are too diverse, and the rules by which they are governed so various, that this must be so. There are, however, a number of typical situations as to which some general principle can be stated. First there are cases where the rules provide for a rehearing by the original body, or some fuller or enlarged form of it. This situation may be found in relation to social clubs. It is not difficult in such cases to reach the conclusion that the first hearing is superseded by the second, or, putting it in contractual terms, the parties are taken to have agreed to accept the decision of the hearing body, whether original or adjourned. .....
At the other extreme are cases, where, after examination of the whole hearing structure, in the context of the particular activity to which it relates (trade union membership, planning, employment, etc.) the conclusion is reached that a complainant has the right to nothing less than a fair hearing both at the original and at the appeal stage. This was the result reached in Megarry J. in Leary v. National Union of Vehicle Builders [1971] Ch. 34. In his judgment in that case the judge seems to have elevated the conclusion thought proper in that case into a rule of general application. In an eloquent passage he said, at page 49:
'If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? ... As a general rule ... I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in the appellate body."
In their Lordships' opinion that is too broadly stated. It affirms a principle which may be found correct in a category of cases: these may very well include trade union cases, where movement solidarity and dislike of the rebel, or renegade, may make it difficult for appeals to be conducted in an atmosphere of detached impartiality and so make a fair trial at the first - probably branch - level an essential condition of justice. But to seek to apply it generally overlooks, in their Lordships' respectful opinion, both the existence of the first category, and the possibility that, intermediately, the conclusion to be reached, on the rules and on the contractual context, is that those who have joined in an organisation, or contract, should be taken to have agreed to accept what in the end is a fair decision, notwithstanding some initial defect.In their Lordships' judgment such intermediate cases exist. In them it is for the court, in the light of the agreements made, and in addition having regard to the course of proceedings, to decide whether, at the end of the day, there has been a fair result, reached by fair methods, such as the parties should fairly be taken to have accepted when they joined the association."At page 594F, Lord Wilberforce added:
"What is required is examination of the hearing process, original and appeal as a whole, and a decision on the question whether after it has been gone through the complainant has had a fair deal of the kind that he bargained for."
Mr Neaman asked us to note the reference to employment as an example of cases where examination of the whole hearing structure may lead to the conclusion that a complainant is entitled to nothing less than a fair hearing both at the original and at the appeal stage. He referred us to various documents which were before the Industrial Tribunal, including the Respondent's Conduct Code and a record of the appeal hearing, which, he contended, indicated that the appeal to Ms Guise was no more than a review of Mr Lazaro's enquiry, and not a complete rehearing, and that in any event the Appellant was entitled to two fair hearings not just one fair appeal hearing from which there was no appeal. All this was without prejudice to his contention that the appeal hearing was unfair and that, in any event there was no sign that the Industrial Tribunal had grasped his point and given a ruling which enabled the Appellant to see why it had not found favour with the Tribunal.Mr Zuke contended that the appeal to Ms Guise had sufficient elements of a rehearing to be capable of correcting any unfairness in Mr Lazaro's enquiry, which was in any event not admitted. He referred to three authorities in the particular field of employment law.In Whitbread & Co. PLC v. Mills [1988] IRLR 501 , Wood J., giving the judgment of the Employment Appeal Tribunal, referred to Calvin v. Carr among other cases and said, at page 509, paragraphs 54 and 55:
"It would follow therefore that not every formality of legal or quasi-legal process is required during the disciplinary and appeal procedures. Each set of circumstances must be examined to see whether the act or omission has brought about an unfair hearing.
If it has, then whether or not an appeal procedure has rectified the situation must depend upon the degree of unfairness at the initial hearing. If there is a rehearing de novo at first instance, the omission may be corrected, but it seems to us that if there is to be a correction by the appeal then such an appeal must be of a comprehensive nature, in essence a rehearing and not a mere review."Mr Zuke also referred us to Clark v. Civil Aviation Authority [1991] IRLR 412 which adds nothing to Calvin v. Carr , save perhaps to underline that the question of whether an appeal has been by way of rehearing may be important in deciding whether an employee has been fairly dismissed despite some earlier injustice and that the question of whether an appeal had amounted to a rehearing is "substantially a question of fact". (See page 416, paragraph 26).Sartor v. P&O European Ferries (Felixstowe) Ltd [1992] IRLR 271 is an example of a case where the Court of Appeal held that the Industrial Tribunal was entitled to hold that defects in the way in which a matter was handled by the employers, albeit involving a breach of natural justice were not fundimental. They could be cured by an opportunity to appeal by way of rehearing.With all these authorities in mind we reject Mr Neaman's argument that disciplinary procedures which are reduced from a fair first hearing and fair appeal, to one fair hearing on appeal, can never be fair.In our judgment, on the rehearing of Mr Welsh's complaint of unfair dismissal by a new Industrial Tribunal it will be for the Tribunal to consider all the relevant factors in his case, the procedures followed at the enquiry by Mr Lazaro and at the appeal to Ms Guise, to decide whether there were flaws in the procedure undertaken by Mr Lazaro and if so their nature and seriousness and whether they rendered his enquiry unfair and, if so, whether they were capable of being cured on appeal and were so cured, by the appeal as conducted by Ms Guise, before concluding whether Mr Welsh's dismissal was unfair or not. There is in our judgment no special weight to be attached to a procedural flaw being a breach of natural justice, although some breaches of natural justice may be irremediable by the appeal procedures which are followed.All these are matters for decision by the new Industrial Tribunal.