Adegobola v Marks & Spencer Plc

In unfair dismissal cases, the tribunal may assess the dismissal process as a whole. However, later events in an internal appeal cannot make the original dismissal unreasonable or unfair where the disciplinary decision had clear evidential support. A tribunal is not barred from examining a final written warning. Its review is limited to whether the warning was issued in good faith, had at least prima facie grounds, and was not manifestly inappropriate. Where separate gross misconduct independently justifies dismissal, review of an earlier warning is unnecessary.

The appellant was dismissed for misconduct involving aggressive behaviour and misuse of a staff discount card, having previously received a final written warning. The Employment Tribunal dismissed her claims for unfair dismissal and unpaid wages. The Employment Appeal Tribunal, at a hearing under the Employment Appeal Tribunal Rules 1993, rule 3(10), dismissed her appeal. The Court of Appeal considered refusal of an adjournment, alleged procedural unfairness arising from investigations conducted after the internal appeal hearing, and the Tribunal’s statement that it had no jurisdiction to examine the earlier warning.

Lord Justice Floyd gave the judgment, with Sir Stanley Burnton agreeing. The appeal was dismissed.

1. The challenge to refusal of an adjournment disclosed no independent ground. Its significance depended on whether the substantive grounds raised an arguable error of law.

2. The court considered the principles stated in British Home Stores Limited v Burchell [1980] ICR 303 and the approach of examining the dismissal process as a whole described in Taylor v OCS Group [2006] ICR 1602. In the present case, the disciplinary tribunal had clear evidence supporting dismissal, including the signed interview notes and the appellant’s admissions. The later appeal procedure therefore did not need to be examined. Nothing occurring subsequently could render the original dismissal unreasonable or unfair.

3. The Tribunal’s statement that it had no jurisdiction to investigate a written warning was, strictly, incorrect. As explained in Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 135, a tribunal should not retry the substantive matters underlying a warning, but may consider whether it was issued in good faith, had at least prima facie grounds, and was not manifestly inappropriate. The court stated that it was unnecessary to conduct that review here.

4. The Employment Tribunal had found that the discount-card offence amounted to gross misconduct and independently justified dismissal, even without the earlier warning. The appeal was accordingly dismissed. The appellant was ordered to pay the respondent’s costs of £1,600.

• Court of Appeal (Civil Division): Appeal dismissed; the appellant was ordered to pay £1,600 costs.
• Employment Appeal Tribunal: HHJ Shanks dismissed the appeal at a rule 3(10) hearing, following an earlier paper decision under rule 3(7).
• Employment Tribunal: Claims for unfair dismissal and unpaid wages dismissed.