Adegobola v Marks & Spencer Plc

LORD JUSTICE FLOYD: The appellant, Ms Bola Adegbola, appeals from the decision of HHJ Shanks sitting in the Employment Appeal Tribunal dismissing her appeal from the Employment Tribunal (Employment Judges Silverman, Mann and Leberton) which in turn dismissed her claim for unfair dismissal and for unpaid wages.

HHJ Shanks' decision was taken at a hearing pursuant to rule 3(10) of the Employment Appeal Tribunal Rules 1993 after an earlier decision on the papers under rule 3(7). That decision was that her appeal failed to raise any arguable error of law. Permission to appeal to this court was initially refused on the papers by Lord Justice Mummery but given at a subsequent oral hearing by Sir Stephen Sedley.

The appellant was employed by the respondent Marks and Spencer PLC as a customer assistant at its Wimbledon store from December of 2007. She was dismissed on the grounds of gross misconduct on 15 November 2011.

On 21 July 2010, the appellant was alleged to have been involved in an incident with another member of staff. There followed an investigation and disciplinary hearing following which she was issued with a final written warning explaining that further acts of misconduct could result in her dismissal. Although she sought to appeal from the final written warning, she lodged her appeal out of time and the respondent declined to hear it.

Three months after the incident in July, on 21 October 2010, the appellant was involved in an argument with a manager during which she raised her voice and displayed aggressive behaviour. A Ms Stevens was asked to investigate the matter. Before that investigation by Ms Stevens was complete, the respondent was notified that on 25 October 2010 a person who later turned out to be the appellant's sister-in-law was seeking to reclaim VAT on items purchased with the appellant's store discount card. Ms Stevens was asked to include this matter as well within her investigation.

Ms Stevens interviewed the appellant about both incidents on 27 and 29 October. She made a written record of the interview in note form which the appellant signed on each page at the time as accurate, but later sought to challenge both within the internal procedures of the respondent and before the Employment Tribunal. Ms Stevens concluded from the interviews with the claimant which she held that there was a case for the appellant to answer in relation to the first incident of aggressive behaviour. In relation to the second incident, the discount card matter, she concluded that, although no charge should be made in relation to the attempt to reclaim VAT, there was basis, as a result of information volunteered by the appellant during her interviews, for concluding that the appellant had purchased goods with the card for resale contrary to the terms on which such cards are to be used by employees.

There followed on 15 November 2010 a disciplinary hearing conducted by a Ms McEllrgoft. The appellant had been properly informed before the hearing of the two charges made against her. Although the appellant had denied that she had bought goods to resell, she was unable to explain why she had signed the notes of the interview with Ms Stevens recording that fact as correct. Ms McEllrgoft accordingly concluded that there were reasonable grounds for believing that the claimant had been disrespectful, that is to say the first incident, and had resold goods bought with her discount card, that is to say the second incident, the latter being classed as gross misconduct. She decided the sanction for such conduct should be dismissal.

Ms Stevens and Ms McEllrgoft both worked at the Wimbledon branch and both had been involved in the previous disciplinary hearing which led to the first written warning in July.

The claimant appealed. Her appeal was heard by a Ms Marsland on 15 December 2010. Her case was summarised by the Employment Tribunal in the following terms:

Following the appeal hearing, Ms Marsland made further investigations prior to compiling her report in which she decided to uphold the decision to dismiss the appellant. The fact that investigations were conducted after the appeal hearing on which Ms Adegbola had no opportunity to comment led Sir Stephen Sedley to grant permission for this further appeal.

The Tribunal considered that it would have been better practice for the respondent to have appointed people other than Ms Stevens and Ms McEllrgoft to conduct the investigation and the hearing. However, at paragraph 33, the Tribunal said this:

HHJ Peter Clark rejected the appellant's appeal on paper on 7 February 2012. On 5 March, the appellant wrote reiterating her desire to appeal. This letter was treated as an application for a hearing under rule 3(10) of the rules. Thereafter, the appellant instructed solicitors to appear on her behalf at the hearing. Notice of that hearing, which was set for 16 July, were sent to her solicitors on 18 April. On 12 July, the solicitors for the appellant applied by fax for an adjournment which was refused by HHJ Shanks. The matter then came before the judge on 16 July. The solicitors did not attend and the appellant acted in person.

There are three grounds of appeal which are contained in the grounds of appeal. The first is that the judge should not have refused the appellant an adjournment. That ground, as Mr Stephenson, who has appeared this morning on behalf of the appellant, very fairly recognises, does not give rise to an independent ground of appeal. He places his appeal firmly in his second and third grounds. He recognises that, if we do not consider either of those ground to be arguable, then there would have been no purpose in the Appeal Tribunal granting the requested adjournment. On the other hand, if we do think that there is something in those grounds, then the matter will be remitted either to the Appeal Tribunal or to the Employment Tribunal as we direct.

I turn therefore to the second ground, which is that there was a breach of natural justice because the Employment Appeal Tribunal overlooked a reasonably arguable point of law, namely that the internal appeal procedure by Ms Marsland involved investigations which were irregular, and then to the third ground, which is that the Employment Appeal Tribunal overlooked another point of law in that they wrongly considered that it had no jurisdiction to investigate the earlier first written warning.

In support of the second ground, Mr Stephenson submits that the appeal procedure was procedurally unfair. He relies on what was said by the Employment Appeal Tribunal in British Home Stores Limited v Burchell [1980] ICR 303 by Arnold J. At page 304C to E, Arnold J said this:

The respondent submits that what occurred in the appeal procedure is not relevant. They accept, of course, as this court has held, for example in Taylor v OCS Group [2006] ICR 1602, that the task of the Tribunal is to look at the process as a whole, bearing in mind the focus on section 98 of the Act. However, the respondent submits that anyone faced with the volunteered admissions in relation to the use of the staff discount card would have reached the same conclusion and, in paragraph 33 of the Employment Tribunal judgment which I have already read, the Tribunal expressly so held. The fact that the appellant had signed those notes was inescapable and gave rise to reasonable grounds for believing that the contents of those notes was true.

The Tribunal's reference to the appeal hearing was only made on the assumption that there was in fact some material procedural unfairness in the first stage. As there was none, the discussion about the fairness of the appeal is academic.

On this ground, I consider that the respondent is right. The argument is not one which was run before the Tribunal but, as Mr Stephenson points out, the Tribunal has a duty to investigate the fairness of the procedure overall. But in the present case it seems to me that the appeal procedure need not be considered. There was the clearest possible evidence which was considered by the disciplinary tribunal that there was a basis for this dismissal. Nothing which occurred subsequently can render that decision unreasonable or unfair. So, although the argument was not run, for the reasons given by respondent, it is not an argument which would have assisted the appellant in any event.

I turn therefore to the third ground of appeal, namely that the Tribunal was wrong to decline to enter into a consideration of whether the first written warning was rightly administered.

The Tribunal expressed itself in paragraph 11 of its decision in this way:

Strictly, if taken entirely at face value, the proposition that the Tribunal does not have jurisdiction to entertain an investigation into a written warning is incorrect. As Mr Stephenson has pointed out, in Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 135, Mummery LJ pointed out that it is not the function of the Tribunal to sit in judgment upon the substantive matters on which the written warning is based but they do need to be satisfied that the final warning is issued in good faith. In paragraph 20 in that case, Mummery LJ added:

I can deal with this ground quite shortly. The Tribunal found that the appellant could have been dismissed for the discount card incident alone without consideration of the second offence or the first written warning (see paragraph 30 of their decision). They so found because the discount card offence amounted to gross misconduct. It is therefore not in my view necessary for us to review the authorities as to the extent to which the court or tribunal should investigate the merits of the first written warning. I should add, however, that I was satisfied by the submissions made by Mr Knight on behalf of the respondent that the Tribunal must have considered the question of good faith and the allegations made by the appellant and rejected them. They could not have arrived at the conclusion they did in relation to the substantive grounds if the very similar allegations which were made in respect of the first written warning were accepted by them. However, it is not necessary to embark upon that investigation because it is absolutely clear in my judgment that the finding in paragraph 30 was sufficient to justify dismissal even in the absence of the first written warning. I do not therefore consider that there is anything in ground 2 either.

For those reasons, which I've endeavoured to express as compactly as I can, I would dismiss this appeal.

SIR STANLEY BURNTON: I agree.