MR B BARDRICK v DSG RETAIL LTD [2000] UKEAT 1113_99_1401
[1]APPEARANCES For the Appellant MR R HOWARD (OF COUNSEL) INSTRUCTED BY WORTLEY REDMAYNE & KERSHAW STONEBRIDGE HOUSE STONEBRIDGE WALK HIGH STREET CHELMSFORD CM1 1EY MR COMMISSIONER HOWELL QC:- We are unanimously satisfied that the Appellant in this case has good grounds to warrant us directing that this Appeal should go forward for a full hearing on certain procedural issues raised in the original Notice of Appeal, and one additional issue of law which has been canvassed in the course of argument before us this morning.[2]It is not necessary to go into great detail into the facts of the case. As recorded in the Tribunal's extended statement of reasons sent to the parties on 28 th July 1999 at pages 12 to 21 of the Appeal file, the Appeal arises out of the dismissal of the Appellant from his employment as a store manager with a chain of electrical retailers following the discovery of a number of transactions involving himself or members of his family to which his employers took exception and treated as misconduct.[3]At issue in particular was a disciplinary appeal procedure carried out in front of a Mr Alexander, the respondents' Divisional Manager, after the initial dismissal had been imposed on the Appellant by Mr Kearns, the Area Manager. The particular grounds on which the procedure adopted by the employers was said to be unfair were first that a memorandum from Mr Kearns who had imposed the original dismissal was before the divisional manager Mr Alexander who conducted the disciplinary appeal, but that the allegations in that memorandum were not put to the Appellant at all in the course of the appeal process so that he did not have an opportunity of dealing with them. We have that memorandum before us at pages 5 and 6 of the Appeal bundle and it makes various allegations, at some points in fairly colourful language, including allegations of dishonesty against the Appellant. Mr Howard who appeared before us on his behalf submits this made the appeal procedure unfair since obviously it was possible those allegations would have had an effect on Mr Alexander in reaching his decision on the appeal. The appellant had had no opportunity of dealing with them and on one particular factual issue at any rate he would have wished to dispute what was alleged factually against him. In addition, criticism is made that Mr Kearns himself, being the Appellant's immediate line manager, should not have taken part in the process since a large organisation such as this group now is, could easily have found a more suitable person or persons to conduct the original dismissal process and take part in the appeal hearing.[4]Those appear to us to provide arguable grounds of appeal against the Tribunal's decision upholding the dismissal as fair, since if there is a procedural defect rendering the dismissal process (including any disciplinary appeal process) unfair further issues must arise as to whether the entire process leading to the confirmation of the Appellant's dismissal can be characterised as reasonable at all under section 98(4) of the Employment Rights Act 1996 and those issues were not apparently addressed by the Tribunal in their decision.[5]The further matter on which we give leave to amend the Notice of Appeal is that in the statement of their conclusions and reasons at paragraph 14(h) on pages 20-21 of the Appeal bundle, the Tribunal appeared to have viewed the question for their decision as whether the decision to dismiss the Appellant was:- "not within a range of reasonable responses open to a reasonable employer faced with breaches on important rules as existed in this case" which appears to imply that the Tribunal was applying a test of "perversity" instead of a test of objective reasonableness as the matter appeared to the Tribunal themselves. In view of certain recent authorities we consider that the Appellant in this case should have the opportunity to raise at a full hearing of this Tribunal whether that approach was correct or not.[6]For those reasons we direct that this Appeal should be set down for a full hearing before the Appeal Tribunal. We give the Appellant leave to amend his Notice of Appeal at pages 1-4 of the appeal bundle by the addition after paragraph 6(4) for a further ground of appeal putting in issue the correctness in law of the Tribunal's approach as recorded in paragraph 14(h) of their decision on page 20. We give leave for those amendments to be made and direct that the Appellant's representatives should lodge an amended Notice of Appeal not later than 14 days from the date of this order.[7]Mr Howard, on behalf of the Appellant, does not seek any order for production of the Tribunal Chairman's notes of the proceedings and accordingly, we make no order for that. We make no special directions about documents other than relating to the amendment of the Notice of Appeal and we give the usual direction for the exchange of skeleton arguments between the parties and for lodging of those arguments with the Employment Appeal Tribunal office, not later than 14 days before the date fixed for the full hearing of the Appeal.