King v Customs & Excise

Permission to appeal out of time should be refused where the proposed appeal has no real prospect of success and raises no other compelling reason for an appeal to proceed.

In an unfair dismissal case, the question is whether the employer genuinely believed in the employee’s misconduct, had reasonable grounds for that belief, and conducted an adequate investigation. The tribunal must then consider whether dismissal fell within the band of reasonable responses. The employee’s actual guilt or innocence is not the issue. Where the employer is a public service with responsibility for enforcing import controls, that institutional context may properly inform the reasonableness assessment.

Appellate intervention for perversity is confined to rare and extreme cases.

The applicant had been employed by HM Customs & Excise for more than 12 years. She was dismissed for gross misconduct after involvement in bringing a large quantity of cigarettes into the United Kingdom, which Customs considered inconsistent with its disciplinary standards and her public-service role.

The Employment Tribunal dismissed her unfair dismissal complaint. It applied the principles in British Home Stores v Burchell [1980] ICR 303, found a genuine belief based on reasonable grounds following a reasonable investigation, and held that dismissal fell within the band of reasonable responses. The Employment Appeal Tribunal dismissed her appeal at a without-notice preliminary hearing.

The applicant sought permission to appeal out of time. The central issues were whether any proposed ground had a real prospect of success, whether the tribunal had applied the correct unfair dismissal test, whether its conclusion was perverse, and whether alleged conduct by the tribunal chairman raised an Article 6 issue.

1. Application dismissed. The applicant was more than three months late in filing her Appellant’s Notice and had not adequately explained the delay. In any event, the proposed appeal disclosed no point of substance with a real prospect of success and no other compelling reason for allowing it to proceed.
2. The Employment Tribunal had applied the correct approach under the Employment Rights Act 1996. The employer bore the burden of proving the reason for dismissal and that it fell within section 98(2). The tribunal then had to determine under section 98(4) whether dismissal was fair in all the circumstances.
3. The relevant misconduct inquiry was whether Customs genuinely believed that the applicant was guilty, whether it had reasonable grounds for that belief, and whether it had carried out an adequate investigation. The tribunal was not required to decide whether the applicant had in fact committed an offence or breached import regulations. It was entitled to find that Customs reasonably concluded that there had been a joint enterprise to import cigarettes not intended for personal consumption.
4. In deciding whether dismissal fell within the band of reasonable responses, the tribunal was entitled to take account of Customs’ public-service functions, including responsibility for ensuring compliance with import controls and maintaining clear standards of conduct and responsibility.
5. The suggestion that Haddon v Van Den Bergh Foods Ltd [1999] IRLR 672 had changed the law by rejecting the range-of-reasonable-responses test was rejected. If that was what Haddon decided, it was plainly wrong. The approach had been disapproved in subsequent cases, including Post Office v Foley and HSBC Bank Plc v Madden [2000] ICR 1283.
6. A perversity challenge could succeed only in a very rare and extreme case. The tribunal, which was charged with finding the facts, had material on which it could reach its conclusions. There was no basis for appellate intervention.
7. The alleged conduct of the chairman did not establish an Article 6 breach. Applying Dexine Rubber Co. Ltd v Alker [1977] ICR 434, the chairman’s account of disputed events had been accepted by the EAT, and there was no unanimity between the parties that the alleged conduct had occurred.

• Court of Appeal (Civil Division): The application for permission to appeal out of time from the EAT’s order was dismissed.
• Employment Appeal Tribunal: The appeal from the Employment Tribunal’s decision was dismissed at a without-notice preliminary hearing on 27 September 2000.
• Employment Tribunal: The applicant’s unfair dismissal complaint was dismissed; the decision was promulgated on 6 September 1999.