MR C R SHAKESPEARE v THE POST OFFICE [1999] UKEAT 438_99_1810

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 438_99_1810

Case No Appeal No. EAT/438/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR C R SHAKESPEAREAPPELLANT

THE POST OFFICERESPONDENT

Before

Mr Justice Holland Mrs R Chapman Mr S M Springer

Date 18 October 1999

[1]APPEARANCES For the Appellant Mr D J Richens (Representative) MR JUSTICE HOLLAND : By an IT1 dated 24 September 1998 Mr Shakespeare raised a complaint of unfair dismissal. That complaint was against his former employers, the Post Office. In due course that complaint was heard by an Employment Tribunal held at Bristol on 13, 14 and 25 January 1999. In the overall result the Tribunal decided that the application should be dismissed. Against that decision an appeal is mounted to this Tribunal alleging an error of law.

[2]It is our task this morning to decide whether such an error can be discerned as arguable. If we think it is arguable then we adjourn the appeal so that there may be a further hearing with the Post Office represented. If, on the other hand, we can find no such point it is our duty to dismiss this appeal.

[3]Turning then to the Extended Reasons that were sent to the parties on 3 February 1999, we learn from that the following, by way of paragraph 2:

"2 The applicant was a Post Office Delivery Officer, working for the Royal Mail in Bath, one of the largest delivery offices in the South West. He had no disciplinary record until 1997. Between November and June 1998, he was disciplined for three different incidents, the last two being related: (a) Following a disciplinary interview on the 24 November 1997, the applicant was given a suspended dismissal of 3 months. The allegations were that he had failed to safeguard a priority service item, and failed to carry out and adhere to the correct delivery procedure for the priority service item. The applicant appealed against that decision. The appeal was rejected on the 26 January 1998. (b) In the meantime, following another complaint, the applicant was given a further suspended dismissal for 2 years following a disciplinary hearing on the 23 February 1998, the allegation being that he had failed to carry out the correct re-direction procedure. The applicant appealed against that disciplinary penalty. The appeal was heard on the 30 April 1998 and rejected. (c) The third matter concerned the intimidation of the customer who had complained about the re-direction of mail in the second incident. The applicant was suspended on the 19 May and warned not to go near the customer's address. The disciplinary interview was held on the 22 May. On the 15 June, following further enquiries, and having given the applicant further opportunity to put his concerns in writing, the applicant was dismissed with notice. The allegation was that the applicant had intimidated a customer by his unofficial action in approaching her regarding a previous complaint and by so doing, brought the Royal Mail into disrepute. He appealed against his dismissal. The appeal was rejected on the 29 July 1998."

[4]Having thus set out very briefly the essential procedural history, the Tribunal in paragraph 3 referred to certain features of the hearing before them and then, in paragraph 4 commenced "The facts are these". Thereafter, at some length and with a good deal of clarity and particularity, they proceed to review the history, to review the evidence relating to that history and to make their findings of fact. They then, at paragraph 29, set out their understanding of the case that Mr Shakespeare was advancing before them, namely that there was a conspiracy against him, so that false disciplinary charges were mounted, so that further he was dealt with unfairly. They reject that on the evidence that came before them. They say that they are satisfied that the Royal Mail witnesses were acting in good faith and there was no hidden agenda, no ulterior motives. They note that Mr Shakespeare, who had been employed by the Royal Mail since 1989, might well be surprised that dismissal should follow for these events in short order. They say, nonetheless they are entirely satisfied that there was no underlying subterfuge on the part of the Post Office.

[5]Turning then to the crucial part for the purposes of this appeal, in paragraph 31 they direct themselves as to the law and they do so in these terms:

"31 Our task is then to say whether the respondent acted reasonably or not in treating that as a sufficient reason for dismissing the applicant. We take, as our starting point, the provisions of Section 98(4) of the Employment Rights Act 1996:- '98(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.' In applying that provision to the facts of the case, we remind ourselves that it is not for us to stand in the shoes of this employer and decide what we would have done. Rather, we must decide whether the employer's decision to dismiss the applicant for the reason proved fell within the range of response of a reasonable employer. In deciding that issue, we have regard to these principles:- (i) Did the employer believe in the misconduct alleged? (ii) Was that belief based on reasonable grounds? (iii) Was there a proper enquiry and investigation into the facts of the case? (iv) Was the applicant given an opportunity to state his case and did the respondent take into account the applicant's explanations? (v) In all the circumstances, was dismissal a sanction open to a reasonable employer?"

[6]In paragraph 32 it reminds itself of a feature that was important to the instant case in these terms:

"32 It must be stressed that we must decide those issues in the light of the knowledge available to the employers at the time. Many of the matters to which the applicant referred in evidence and cross-examination have been the result of his persistent enquiries over the months since he was dismissed. He has not accepted his dismissal, or the reasons for it, and has sought to prove his theory that there was a conspiracy against him. He has obtained letters from the person to whom the special delivery mail was sent; from the person to whom it was apparently delivered; from one of the Spencer's and so on. None of that material was available to the respondent. We reiterate, we judge the case in the light of the information known to the respondent at the time. We have to decide whether they acted reasonably in relying upon it."

[7]In the balance of the Extended Reasons the Tribunal seeks to provide answers to the five questions that it posed. Thus paragraph 33 starts with a consideration of the first question, namely "Did the respondent believe in the misconduct of the applicant?" and that question is answered in terms "We have no doubt they did, and we so find." They then go on to deal in turn with each of the five rhetorical questions that they had posed and, in the event their findings with respect to each of those questions are in effect against Mr Shakespeare and in favour of the Post Office, and it is in those circumstances that they indicated by way of paragraph 38 that they were dismissing his application based upon unfair dismissal. They indicate that in arriving at their decision they had considered all the documentation that was put before them.

[8]That then is the decision under appeal and the concern we have this morning is as to whether there is any arguable point that arises. The difficulty we have is that Mr Shakespeare is represented before us, as he was in the Tribunal below, by a friend Mr Richens, who has candidly told us that he has no legal knowledge. This inevitably places a difficulty upon Mr Shakespeare but, more particularly, places a difficulty upon this Tribunal. We are concerned, understandably, to do justice to him and to see if the problems he has with representation are not such as to prevent justice being done in his case.

[9]With that preface we look at the merits of the matter. Neither the Notice of Appeal nor the skeleton argument raise any point of law at all.

[10]We have however, ourselves, focused very carefully upon the directions that the Tribunal gave to themselves that are already featured in this judgment. If there is an error it is here that it may lie. On our own initiative we have spent some time discussing amongst ourselves those directions to see whether they were well founded in law and, just as importantly, whether the Tribunal gave proper application to them.

[11]One particular matter raised in the course of the hearing by one of our Members relates to question (iii) "Was there a proper enquiry and investigation into the facts of the case?" We remind ourselves that the Post Office had very substantial resources available to it and there could be a concern as to whether, given those resources, they should not have made further enquiries in order to establish some of the material facts contended for by Mr Shakespeare. However, that query having been raised amongst ourselves in order to try to help Mr Shakespeare, we then took the trouble to examine very carefully the Extended Reasons, the findings of fact and in the event we cannot say there is a point of law that would justify an inter partes hearing.

[12]We make the point about our own investigation because we are very keen to put over our concern to do the best we can with this particular case, notwithstanding the lack of representation that aspires to professional legal knowledge.

[13]We have looked carefully at every other aspect of this matter and in the overall result we are totally unable to find an error of law that featured in this decision of this Tribunal. Were it otherwise we would unhesitatingly say so and the matter would go forward for a hearing. In the event, because we cannot find a point of law, we have to dismiss this particular appeal.

[14]We may say that, apart from looking carefully at the way the appeal is mounted so to make sure at this stage that there is nothing that is being missed, we have also looked carefully at the way in which the matter proceeded before the Tribunal. There appears to be no doubt, from the documentation, that problems arose before the Tribunal again, because the nature of the issues were perhaps not fully understood by Mr Shakespeare's representative and hence there was conflict over the bounds, or what were perceived to be the permissible bounds of the adducing of evidence. However, that matter has not troubled us today, albeit it is a matter that is referred to properly by the Tribunal in paragraph 3 of the Extended Reasons.

[15]Throughout, we have tried to do our level best to give Mr Shakespeare the benefit of our joint experience through sitting in this Tribunal, but even allowing for that we simply cannot assist him further. This appeal has to be dismissed.