Maxham v Provend Services Ltd

A procedural defect in a misconduct dismissal does not automatically make the dismissal unfair. The Employment Tribunal must assess the dismissal as a whole, including whether a later appeal provided a full and effective rehearing. A full rehearing may cure earlier defects in warnings or disciplinary notifications where the employee understands the allegations, knows that dismissal is at stake, and has a proper opportunity to present their case. An appellate court considering an application for permission must identify an arguable question of law with a real prospect of success; it cannot reopen factual findings.

Mr Maxham sought permission to appeal from the Employment Appeal Tribunal’s unanimous dismissal of his appeal against the Employment Tribunal’s decision that his unfair-dismissal claim failed. He had been dismissed by Provend Services Ltd for alleged misconduct involving rude and aggressive behaviour towards customers.

The Employment Tribunal found defects in the disciplinary warning and notification of the later hearing. It nevertheless held that the defects were cured by a thorough appeal hearing which amounted to a full rehearing. The central issues were whether the Tribunal had erred in law and whether the procedural defects rendered the dismissal unfair.

1. Application refused. The application disclosed no question of law with a real prospect of success. Findings of fact made by the Employment Tribunal were not open to challenge in the proposed appeal.
2. The Employment Tribunal had correctly directed itself by reference to the Burchall v British Home Stores test for misconduct dismissals. The relevant matters included the employer’s genuine belief in the misconduct, reasonable grounds for that belief, a reasonable investigation, a fair procedure, and whether dismissal fell within the band of reasonable responses.
3. A procedural defect does not necessarily make a dismissal unfair. The Tribunal was entitled to find that defects in the final written warning and the notification of the disciplinary hearing were cured by the subsequent appeal hearing.
4. The appeal hearing was a full and thorough rehearing. Mr Maxham attended, knew the serious nature of the allegations and the potential consequence, and had a full opportunity to defend himself. In those circumstances, the earlier procedural faults did not prevent the dismissal from being fair.
5. The Tribunal was therefore entitled to conclude that the dismissal was fair after finding that the relevant elements of the Burchall v British Home Stores test were satisfied. The order was: application refused.

• Court of Appeal (Civil Division): Permission to appeal refused.
• Employment Appeal Tribunal: Appeal dismissed on 2 May 2002.
• Employment Tribunal: Unfair-dismissal claim refused after a unanimous decision that the dismissal was fair.