Stewart v Royal Mail Group Ltd

LORD JUSTICE KITCHIN: I have before me two applications by Mr Stewart for permission to appeal. The first is an application for permission to appeal from the decision of Simler J given on 15 October 2014 and her consequential order directing that no further action be taken on Mr Stewart's appeal from a decision of Employment Judge Cassel in the Employment Tribunal which was given on 9 December 2013. Permission to appeal was refused on the papers by Jackson LJ by order dated 12 May 2015.

The second is an application by Mr Stewart for permission to appeal from the decision of His Honour Judge David Richardson given on 14 May 2015 dismissing Mr Stewart's appeal from a decision of the Registrar of the Employment Appeal Tribunal dated 27 January 2015. By that decision the Registrar refused to grant Mr Stewart an extension of time for appealing to the Appeal Tribunal. Permission to appeal to this court was refused on the papers by Jackson LJ by order dated 16 November 2015.

Mr Stewart has asked that each of the decisions of Jackson LJ be reconsidered as an oral hearing which has come on before me today. Mr Stewart has appeared before me in person.

The background is somewhat complicated but for the purposes of the applications before me it may be summarised as follows. Mr Stewart was employed by the respondent, Royal Mail, with effect from 9 August 2004 as a postal operative. On 2nd November 2011 an incident occurred in the canteen at South Midlands Mail Centre, in the course of which it was said Mr Stewart used threatening and abusive behaviour towards a member of staff.

On 7 December 2011 Mr Stewart attended a disciplinary hearing and on 22 December 2011 a charge against him in respect of the incident was upheld and he was summarily dismissed. In March 2012 Mr Stewart brought his first claim (which I shall call claim 1) alleging race discrimination and unfair dismissal. In addition Mr Stewart pursued an internal appeal against his dismissal. This was successful, in that the dismissal was rescinded and replaced with a two year suspended dismissal, the penalty to remain on Mr Stewart's record for five years. He was transferred to Bletchley. Not long afterwards Mr Stewart was the subject of further disciplinary proceedings which led to his dismissal for gross misconduct with effect from 20 July 2012.

This second dismissal led Mr Stewart to issue another claim, (which I shall call claim 2) on 4 October 2012, alleging, amongst other things, unfair dismissal. In the meantime, on 28 September 2012, Employment Judge Bloom held that all of the claims comprised in claim 1 should be struck out save for the claim for race discrimination.

On 19 April 2013 Employment Judge Metcalf made an Unless Order in relation to claim 1 which provided that unless Mr Stewart gave further information about the claim it would be struck out without further notice to him. The deadline for compliance with this order was 16 May 2013. On 20 May 2013 Royal Mail applied to strike out the claim and Mr Stewart was given until 19 June 2013 to comment. Then on 26th June 2013 Employment Judge Moore notified the parties that the Unless Order had taken effect and that the claim had been struck out.

On 2nd December 2013 claim 2 came on for hearing before Employment Judge Cassel and 9 December 2013 that claim was dismissed. Written reasons were promulgated on 21 January 2014.

On 21 February 2014 Mr Stewart lodged a single notice of appeal against the decisions in both claim 1 and claim 2. The notice of appeal was in time so far as it related to claim 2 but it was out of time so far as it related to claim 1.

I can now turn to the two applications before me. I will deal with claim 2 first. On 22 July 2014 Mr Recorder Luba QC, on a paper sift, ordered that no further action be taken on the appeal. He concluded there was no arguable error of law in the decision of Employment Judge Cassel promulgated on 21 January 2014.

A further hearing took place before Simler J on 15 October 2014 and she refused permission to appeal. Mr Stewart was represented on that occasion by Ms Jane Russell who appeared on his behalf under the Employment Law Appeal Advice Scheme. The appeal was advanced on three grounds. Two were procedural and the third was substantive. The first procedural point was that there were failings in relation to the disclosure of witness statements in the course of the disciplinary process. The second was that Mr Stewart had not been afforded the opportunity of an appeal that he should have been.

As to the substantive point, it was said that the Tribunal had not adequately set out the basis upon which it reached the conclusion that Royal Mail had a genuine belief in the misconduct alleged against Mr Stewart and that inadequate reasons had been provided. Moreover, so it was said, the real reason for Mr Stewart's dismissal had nothing to with his conduct but was instead the result of pressure applied to Royal Mail as a result of the earlier Tribunal claim.

Before turning to these grounds and the way in which Simler J dealt with them I must say a little more about the nature of the incident. It was said that on 18 April 2012 Mr Stewart returned to the delivery office where he was spoken by the delivery manager, Mr Bashford. He was asked whether he had completed the delivery and whether he had helped Mr Cornwell, who worked with him, to unload their van following the delivery. Mr Bashford confirmed that Mr Stewart answered "yes" to both questions. In the event however and shortly after that discussion Mr Cornwell was said to have returned with an entire undelivered delivery and told Mr Bashford that Mr Stewart had given him no help to unload the van.

Mr Stewart was thereupon suspended from duty by Mr Bashford, who believed that there was evidence to show that Mr Stewart had been dishonest. On 21 April 2012 a fact-finding meeting took place and on 10 May 2012 Mr Stewart was invited to a disciplinary hearing which was held by Mr Brunning. Mr Stewart was also provided with the relevant witness statements. The documents should have been served a clear 48 hours prior to the hearing and in fact they were served within 46 hours of the hearing. There was however no evidence that this slight delay caused Mr Stewart any disadvantage. At the end of the hearing Mr Brunning adjourned the proceedings and re-interviewed witnesses but nothing new apparently emerged during the course of this inquiry.

Mr Stewart was invited to a disciplinary hearing which was held by Mr Brunning on 20 July 2012, in the course of which he announced his decision that Mr Stewart was guilty of gross misconduct and was to be summarily dismissed. This decision was confirmed in writing with reasons in what Employment Judge Cassel called "an impressive document".

Mr Stewart was told of his internal right of appeal, which he exercised, but the first attempt at an appeal was apparently adjourned at Mr Stewart's request to allow his Union representative to be present. Further attempts were made to reassemble the appeal meeting but Mr Stewart again failed to attend or to contact the relevant person, a Mr Welch, either in person or through his Union representative. Employment Judge Cassel was satisfied that Mr Welch had made genuine efforts to hear the appeal but on 4 September M Welch wrote to Mr Stewart informing him that as he had no response from Mr Stewart, he was treating the appeal as having been withdrawn. A subsequent request made on behalf of Mr Stewart to have the appeal revived was refused. Accordingly Mr Stewart was dismissed as of 20 July 2012.

Employment Judge Cassel came to the conclusion that there was overwhelming evidence to show Mr Stewart had been dismissed as a result of his conduct and not as a result of the earlier proceedings in the Employment Tribunal. Indeed, that suggestion was not developed. It was further found that the relevant witnesses were interviewed and subsequently re-interviewed. Further, Mr Stewart had explained to him the nature of the complaint and he was taken through the evidence that had been gathered. He was, so Judge Cassel found, given a reasonable opportunity to ask questions, to present evidence and to call relevant witnesses. He was given notice in advance of the evidence upon which Royal Mail intended to rely. Following the meeting appropriate time was taken for reflection and proper consideration. Further checks were carried out and Mr Brunning satisfied himself as to the factual nature of the allegations. It followed, so Judge Cassel held, that the decision taken by the Royal Mail had been taken in an entirely appropriate way. Moreover Mr Brunning convinced Judge Castle that he held a genuine belief that Mr Stewart was guilty of gross misconduct and produced a substantial written analysis in which he gave very clear reasons showing that there were reasonable grounds for his conclusion and that the investigation was also a reasonable one.

In the light of these findings by Employment Judge Cassel it comes as no surprise to me that Simler J arrived at the conclusion that she did. In my judgment, she properly found that there was nothing in the witness statement point and in any event this was not pressed at the hearing before her. Further, in so far as the refusal to reinstate the appeal was concerned, Simler J found, and in my judgment properly found, there was no basis for interfering with the decision of the Tribunal that Royal Mail had made entirely reasonable attempts to allow the appeal process to take place and run its course. Simler J considered the decision of the Tribunal that the refusal to revive the appeal could not be categorised as so unreasonable as to be a decision that no reasonable employer could have reached. Certainly the Tribunal made no error of law in approaching the matter as it did.

The third ground of appeal sought to challenge the decision of Employment Judge Cassel that Royal Mail had a genuine belief that the misconduct had occurred. Simler J considered that this point was not arguable. This is a matter upon which Mr Stewart has focused particularly during the course of his submissions to me this morning. He submits that there were fundamental errors in the original decision-making process, that the findings against him on the facts are wholly wrong, that Mr Cornwell had, as he put it to me, "it in" for him from the outset and that he has been throughout the victim. Further, he submits he was never given an opportunity to put his case properly and that these proceedings have cost him his home, his wife and his children and that he is now homeless. He says the statements of the witnesses who gave evidence against him are internally inconsistent and inconsistent one with another.

Mr Stewart has made his submissions to me this morning in a measured and reasonable way. I have no doubt at all that these proceedings have had the very serious impact on him that he has described to me. However, as I have sought to explain to Mr Stewart this court will not revisit findings of fact made by a Tribunal which has had the advantage of seeing and hearing the relevant witnesses give their evidence unless there are compelling reasons so to do. I have related the history of these proceedings in some detail and I have explained the circumstances in which Employment Judge Cassel came to the conclusion that she did. As I have said, Judge Cassel came to the conclusion that there was overwhelming evidence to show that Mr Stewart had been dismissed as a result of his conduct and not as a result of the earlier proceedings in the Employment Tribunal. Judge Cassel was also satisfied that Royal Mail had a genuine belief that misconduct had occurred. Simler J considered that, in the light of those findings, an appeal was not arguable and I agree with her. There were, as Simler J said, ample grounds for Mr Brunning to conclude that Mr Stewart was guilty of misconduct. That finding was supported by the evidence of Mr Cornwell and Mr Bashford and, as Simler J noted, the relevant witnesses were re-interviewed following the disciplinary hearing and that was so because Mr Brunning had identified a conflict of fact and wished to check matters and satisfy himself as to the factual basis of the allegations. I have no doubt that Mr Stewart does have a genuine sense of grievance. However, there is no real prospect of this court interfering with the conclusion to which Simler J came. It is, in my judgment, not arguable that Simler J has fallen into error and I am satisfied that an appeal would not have a reasonable prospect of success. I have come to the conclusion there is no other compelling reason why an appeal against this judgment should be heard.

I come to the appeal in relation to claim 1. As I have explained, the parties were informed that the Unless Order had taken effect by letter dated 26th June 2013. However, a notice of appeal was not lodged until 21 February 2014. The appeal was therefore more than six months out of time. In those circumstances, Mr Stewart applied for an extension of time. That application was refused by the Registrar and it was against that decision that Mr Stewart appealed to Judge Richardson. As Judge Richardson explained, the time for appealing to the Employment Appeal Tribunal is generous, and accordingly the Tribunal expects the notice and relevant supporting documents to be filed in time in accordance with the rules. The need for strict compliance is made plain. Moreover the Appeal Tribunal does not readily grant extensions.

Mr Stewart appeared before Judge Richardson and gave evidence in person. He sought to explain to Judge Richardson why he was late in appealing. In the course of that evidence he apparently accepted that he received a letter dated 12 June 2013, giving his representative an opportunity to make submissions, and the letter 26th June 2013, recording that the claim was automatically struck out. But he gave evidence that, to the best of his recollection, he did not receive those letters at the time they were sent and only received them in July 2013 when the Race Equality Council ceased to represent him. He also told Judge Richardson that when he received the letters he was not sure he read them and, if he did read them, he did not appreciate their significance. He continued to prepare for the hearing in December and it was at the beginning of that hearing it became very clear that the discrimination claim had been struck out. Even then he did not serve a notice of appeal because, so he said, he did not have the necessary knowledge of procedure to do so.

Judge Richardson accepted that Mr Stewart had given honest evidence, that he had been through a difficult time in many ways and that he had given as full an explanation as he could. Nevertheless he held that Mr Stewart did not have a good excuse for his substantial delay. He had the documents in July and it was incumbent upon him, representing himself, to read them and to do so with care. Had he done so, it would have been quite plain to him that the claim had been struck out for failure to comply with the Unless Order. Leaving it as he did for a substantial length of time was not excusable. Moreover, he was well aware his discrimination claim had been struck out by December 2013 and yet still took a considerable time to lodge a notice of appeal.

I have set out the substance of the reasoning of Judge Richardson in some detail. To my mind and in agreement with Jackson LJ, I do not believe it reveals any error of law. Mr Stewart has sought to persuade me this morning that in fact he did act relatively promptly when he did receive and had an opportunity properly to read and understand the documents to which I have referred. But I see no real prospect of Mr Stewart persuading this court that the position as explained by him to Judge Richardson was incorrect or that the decision to which Judge Richardson came was wrong, or that any part of it amounted to an error of law.

I am satisfied that there is no real prospect of this court interfering with the decision to which Judge Richardson came. Once again therefore an appeal would not have a real prospect of success. Moreover there is no other compelling reason why an appeal should be heard.

I would say again that I have considerable sympathy for Mr Stewart but for the reasons that I have given, both applications must be dismissed.