EMPLOYMENT
Disciplinary procedures - gross misconduct - unfair dismissal - previous misconduct

Airbus UK Ltd v MG Webb: CA (Civ Div) (Lords Justice Mummery, Thomas, Mr Justice David Richards): 7 February 2008

The appellant employer (X) appealed against a decision ([2007] ICR 956) dismissing its appeal against an employment tribunal's finding that it had unfairly dismissed the respondent former employee (W).



W had been summarily dismissed for gross misconduct after he had been found watching television when he should have been working. Four other workers found doing the same thing were not dismissed but given a final written warning. W had a prior disciplinary record. He had been given a final written warning for gross misconduct involving misuse of X's premises and equipment, and fraudulent misuse of company time. That warning had been expressed to last for 12 months and had expired roughly three weeks before the second incident.



X argued that: (1) instead of applying the provisions of section 98(4) of the Employment Rights Act 1996 to all the circumstances of the case, the tribunal fell into the error of regarding itself as bound by the decision in Thomson v Diosynth Ltd [2006] CSIH 5, [2006] SC 389 to single out just one circumstance, namely that X had taken into account an expired final warning. The tribunal was not bound either by section 98(4) or by Diosynth to find unfair dismissal for that reason; (2) the misconduct for which the final warning was given was a relevant circumstance in the tribunal's determination whether dismissal was within the range of reasonable responses, but was not the decisive factor, and it was clear that, had it not been for the majority's understanding of Diosynth, the tribunal would have held unanimously that W's dismissal was in all the circumstances fair; (3) W had already been given the chance that was being given to the other four workers involved in the second incident. The majority had erroneously focused on the expiration of the final warning rather than on the misconduct for which it had been given.



Held: The language of section 98(4) was wide enough to cover an employee's earlier misconduct as a relevant circumstance of the employer's later decision to dismiss the employee, whose later misconduct was shown by the employer to be the reason or principal reason for dismissal. The expired warning did not make the earlier misconduct an irrelevant circumstance under section 98(4), UK Coal Mining Ltd v Raby, Unreported, 30 January, 2003 EAT and William Grant & Sons Ltd v Devlin, Unreported, 25 March 2004 EAT considered. It was open to a tribunal to find that a dismissal for misconduct was fair, even though the employer, in his response to the reason for which the employee was dismissed, took account of the employee's previous similar misconduct, which was the subject of an expired final warning. Diosynth was distinguishable: it was a case in which, but for the previous warning, the employer would not have shown a reason for dismissing the employee.



In the present case, dismissal was unanimously held to be within the range of reasonable responses of X. Diosynth was not authority for the general proposition that the misconduct in respect of which a final warning had been given, but had since expired could never be taken into account by the employer when deciding whether to dismiss an employee, or by the tribunal when deciding whether the employer had acted reasonably or unreasonably. Diosynth did not decide that the earlier misconduct and the expired warning were irrelevant circumstances of the case, and it did not decide that dismissal was necessarily unfair if account was taken of an expired warning. There was no disparate treatment of the employees involved in the second incident of misconduct. None of them was dismissed for a first offence of misconduct. It was the first misconduct of the four workers who were not dismissed, but received the lesser penalty of a final warning. In W's case it was repeated misconduct, for which he was dismissed, having received the lesser penalty of a final warning after the first incident.



Appeal allowed.



Thomas Linden QC (instructed by EEF Legal Services) for the appellant; Andrew Short, Joanne Sefton (instructed by Rowley Ashworth) for the respondent.





LANDLORD AND TENANT

Extension of leases - flats - premises - redevelopment

Majorstake Ltd v Curtis: HL (Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell): 6 February 2008

The appellant tenant (C) appealed against a decision ([2006] EWCA Civ 1171, [2007] Ch 300) that the expression 'any premises in which the flat is contained' in section 47(2)(b) of the Leasehold Reform, Housing and Urban Development Act 1993 could consist of two adjacent flats in a block.



C lived in a flat on the seventh floor of a block containing 50 flats on nine floors. The upper floors of the block each contained six flats and the common parts. C gave notice to the respondent landlord (M), claiming to exercise his right to acquire a new lease. M responded by serving a counter-notice stating its intention to apply to the court for an order under section 47(1) of the 1993 act that C's right to acquire a new lease should not be exercisable on the ground that M intended to redevelop 'the whole or a substantial part of the premises in which [C's] flat [was] contained' within section 47(2)(b).



M's original redevelopment intention had been to combine C's flat with the flat next door so as to create a single larger flat on the seventh floor, but it later proposed to combine his flat with the one on the floor below, so as to form a larger 'duplex' apartment.



The judge held that C's flat and the flat beneath did not together constitute premises in which his flat was contained. The Court of Appeal, by a majority, disagreed. M argued that the phrase 'any premises in which the flat is contained' in section 47(2)(b) meant C's flat, together with any other part of the building which was capable of being identified by M using a continuous line drawn on a three-dimensional plan of the building. C argued that it meant an objectively recognisable unit of space containing C's flat within the building or the whole building, and not a notional space identified by M in whatever way it chose.



Held: (1) The 1993 act was designed to give long-leaseholders of flats rights as close as possible to those of freeholders, at a price approximating to the market price, though subject to some statutory assumptions. That purpose would be frustrated if the landlord could defeat those rights by proposing to do comparatively minor works to the building involved, which would be the outcome of M's interpretation. Nor could it have been Parliament's intention to allow the landlord to define the 'premises' for itself. Hence it seemed clear that 'any premises in which the flat is contained' had to be an objectively recognisable physical space, something which the landlord, the tenant, the visitor and the prospective purchaser would recognise as 'premises'. If a visitor was asked what were the premises in which C's flat was contained, the visitor would say the block and would not further sub-divide the space. In a single block of flats with several entrances leading to separate staircases, the visitor might also say a block rather than the whole building. Much would depend upon the physical facts on the ground. That was a much more objective test than that proposed by the landlord and, in most cases, would lead to very similar results to those in collective enfranchisement cases.



(2) It had been taken for granted in the present proceedings that, if the premises were the block, then two flats out of 50 did not constitute 'a substantial part of' the premises. In an expression such as a 'substantial part', there was clearly an element of comparison with the whole: it was something other than a small or insignificant or insubstantial part. The works intended by M were substantial in relation to each of the flats involved, but those flats did not constitute a substantial part of the whole premises. In any event, it would not be right to decide the case against C on a point which had not been taken below.



Appeal allowed.



Edward Denehan (instructed by Freeman Box) for the appellants; Derek Wood QC, Emily Windsor (instructed by SJ Berwin) for the respondents.





CRIMINAL PROCEDURE

Bill of indictment not fulfilling procedural requirement - validity of subsequent trial and convictions

R v (1) Ronald Augustus Clarke (2) James Andrew Francis Mcdaid: HL (Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood): 6 February 2008

The appellants (C and M) appealed against a decision upholding their convictions for grievous bodily harm with intent and other offences.



When the appellants' trial had started, there was no signed indictment before the crown court. After evidence at the trial had ended, C and M were arraigned on an additional but alternative count of inflicting grievous bodily harm, at which point the existing form of indictment was amended by leave of the trial judge. A copy of the amended form was signed by the proper officer of the court and the amended form treated as the indictment on which the jury had convicted.



The Court of Appeal applied the principle in the case of R v Ashton (John) [2006] EWCA Crim 794, [2007] 1 WLR 181 and determined that the proceedings were not rendered invalid because the original indictment was unsigned, and as no prejudice or consequential injustice had been identified the convictions were upheld.



The questions to be resolved were: (i) whether the absence of a signed indictment at the outset of and during most of the trial had the legal effect of invalidating the proceedings; (ii) if so, whether such invalidity could be cured by the late signature of the proper officer.



The appellants argued that sections 1 and 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 required a bill of indictment to be signed by the proper officer before it could become an indictment and, therefore, the trial and subsequent convictions were a nullity. The Crown submitted that it was clear from authority that, whenever a court was confronted by a procedural failure, it must first ask, before exercising a power, whether the intention of the legislature was that any act done following that procedural failure should be invalid. If not, the interests of justice generally should be considered and, in particular, whether there was a possibility that the prosecution or defence could suffer any prejudice on account of the procedural failure. If such a risk existed, the court had to decide whether it was just to allow the proceedings to continue.



Held: Parliament clearly intended when it enacted sections 1 and section 2 of the act that if a bill of indictment was preferred, but not signed by the proper officer, that the bill should not become an indictment unless and until it was duly signed by a proper officer. Based on the language of the legislation and consistent judicial interpretation, Parliament intended the consequence of that to be that there could be no valid trial on indictment if there was no indictment, R v Morais (Carlton) [1988] 3 All ER 161 CA (Crim Div) approved.



While that might produce unsatisfactory results from time to time, it was clear that in enacting section 2 Parliament intended the affixing of a signature by the proper officer to be more than a technicality, and should constitute an essential part of the procedure of presentation or preferment of an indictment to the court. There was no basis on which the court in Ashton could properly depart from the precedent in Morais. The late signing of the amended bill in the present case could not validate an invalid trial which was almost concluded. Once C and M had been arraigned and tried without a valid indictment, the addition of a signature at the eleventh hour could not 'throw a blanket of legality' over the invalid proceedings.



Appeals allowed.



Joel Bennathan QC, Peter Wilcock (instructed by Hadgkiss Hughes & Beale) for the appellants; David Perry QC, Duncan Perry QC (instructed by the DPP) for the respondents.





Police - persistent offenders - power to detain suspect - detention pending consultation with DPP

R (on the application of G) (appellant) v Chief Constable of West Yorkshire (respondent) & Director of Public Prosecutions (interested party): CA (Civ Div) (Sir Igor Judge, Lords Justice Carnwath, Toulson): 5 February 2008

The appellant (G) appealed against a decision ([2006] EWHC 3485 (Admin)) dismissing his claim for judicial review of a decision made by a custody officer that he should be detained pending a decision from the Crown Prosecution Service (CPS) as to whether he should be charged.



G, a persistent young offender, had been arrested on suspicion of having committed assault occasioning actual bodily harm. G's legal representative informed the custody officer that there was no proper basis for detaining G, as there was sufficient evidence to charge him and that, in accordance with section 37 of the Police and Criminal Evidence Act 1984, G should be released on bail or charged.



The custody sergeant decided that he had the power to detain G for the purpose of referring the case to the CPS for a charging decision because section 37A(3) required custody officers to have regard to guidance issued by the DPP.



G was detained for three hours before being charged with affray and common assault on the advice of the CPS, but not for assault occasioning actual bodily harm. G applied for judicial review of the custody officer's decision to detain pending being charged. The High Court held that the detention was lawful.



Held: There was no provision in the act that authorised a custody officer to postpone a charging decision for the purpose of obtaining advice under section 37B without admitting a suspect to bail. Section 37(7)(a) to (d) was a carefully structured statutory framework that dealt comprehensively with the alternatives available to a custody officer. Express reference was made in that framework to section 37B, but none was made to section 37A. Section 37B required a suspect to have been released without charge and on bail. Therefore, the choice of that alternative could not found a lawful period of detention while the duty lawyer, on behalf of the DPP, was consulted.



The court was essentially being asked to infer the existence of a power to authorise detention by reference to guidance issued by the DPP under section 37A, to which no reference could be found in the alternatives countenanced by the statutory framework. Section 37A was not susceptible to that construction and the guidance issued by the DPP was not adequate to create the power that the custody officer believed he was exercising.



Section 37A did not invest the DPP with some kind of delegated but unspecific authority, through the issue of guidance, to extend the power of police officers to keep a suspect in detention. Any such guidance was limited by the express statutory alternatives found in section 37(7) (a) to (d). Those alternatives, as they then stood, did not include the power that existed by the date of the present hearing to keep a suspect in detention for the purpose of consultation with

the DPP.



Appeal allowed.



Stephen Cragg (instructed by Harrison Bundey) for the appellant; James Watson QC, Mark Ley Morgan (instructed by a Force solicitor) for the respondent; David Perry QC, Duncan Atkinson for the interested party.



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