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Cite as: [1992] UKEAT 381_90_2306

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BAILII case number: [1992] UKEAT 381_90_2306

Appeal No. EAT/381/90

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23rd June 1992

Before

THE HONOURABLE MR JUSTICE WOOD MC (P)

MRS M L BOYLE

MR L D COWAN

R PRESTON APPELLANT

J SMITH & SONS (CLERKENWELL) LTD RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant MR J WATT-PRINGLE

(Of Counsel)

Anthony Boyson & Co

5/9 Grey Street

Newcastle upon Tyne

NE1 6EE

For the Respondents MR C WYNTER

(Of Counsel)

Theodore Goddard

150 Aldersgate Street

London

EC1A 4EJ

MR JUSTICE WOOD (PRESIDENT): By an Originating Application dated the 25th January 1990, Mr Preston alleged that he had been unfairly dismissed by his employers, the Respondents, J Smith & Sons (Clerkenwell) Ltd. He represented himself, and the Company, before an Industrial Tribunal who heard his allegations, were represented by a Personnel Director, Mr Gallagher. The Tribunal found that he had been fairly dismissed and he now appeals to this Appeal Tribunal.

The Company is a national company carrying on business as non-ferrous metal distributors, with some twelve branches throughout the Company. It is, in fact, a subsidiary of a major Company. One of the branches is at Gateshead and it was at that branch that the Applicant, Mr Preston, was employed. The Branch Manager was a Miss Gash and the Under Manager a Mr Bell. Stocks of wire were held at that Branch which belonged to Enfield Winding Wires Ltd, another subsidiary of the same holding Company, and which were distributed on behalf of the Company from that store.

The Applicant was a driver and he had been employed by the Company for some six years. He was dismissed on the 30th November 1989. Miss Gash wrote him a letter of the same date which informed him of the position. It pointed out that Mr Bell, the Deputy Manager, had been present together with herself at the disciplinary meeting on that same day, the 30th November. Then it continued thus:

"The meeting followed on from an earlier meeting with you held on the 27th November in order to discuss accusations made against you by a customer, that you had offered to supply him with winding wire for cash. At the meeting on Monday you said you could not recollect making any such offer to any customer. I suspended you to allow a thorough investigation of the accusations. I have interviewed the person who made the accusations and I am satisfied that the employee they were accusing was you. Although the individual concerned does not wish to be identified he has told me that there has been no animosity in the past between him and you and that he has no reason for having any hostility towards you.

As part of my investigation I have arranged a check of all winding stock and have discovered that some 533 kilos of wire are missing from the warehouse. At the reconvened hearing on the 30th November I asked you again if you made an approach to a customer to supply winding wire for cash, you replied that you had not done so.

Having carefully considered all the circumstances of the case, and taking account of my investigations I believe I have good reason to believe that you have been guilty of gross misconduct in offering to supply wire for cash. This wire could only be obtained by stealing it from the Company. I therefore advised you at the hearing that you were summarily dismissed."

She then goes on to point out his right to appeal against the decision; he did not do so.

That is an admirably clear letter. It points to the two meetings that have taken place; it points to the accusation which is made, namely, that Mr Preston had offered to supply the customer with winding wire for cash; it recited his defence to that, mainly that he had made no such offer; it recites the fact that Miss Gash has herself been making investigations and seen the customer; it recites the fact that she is satisfied as to the identity of the Applicant, Mr Preston, as the person involved; it indicates that there is no animosity so she looked into that, any question of hostility; she says that she has had a check on what has been missing, and then she sums it all up by saying that she had good reason to believe, and here the important words, "that you have been guilty of gross misconduct in offering to supply wire for cash" and goes on to say "that could only be obtained by stealing".

It is further to be noted that the Tribunal when dealing with this matter in paragraph 10 found that the reason for dismissal was that the Applicant offered for sale to a customer wire held by the Respondents for distribution which was the property of Enfield Winding Wires Ltd. This reason related to the gross misconduct.

During submissions before the Industrial Tribunal Mr Gallagher had submitted that reason, and I am reading now from the Chairman's note:

"The reason was the applicant had been offering wire for sale and had been selling it. Both were reasons for dismissal."

But the decision of the Tribunal, which was unanimous, is noted a little further down on that same page:

"Offering wire for sale which was property held by the respondents on behalf of an associated company. The reason was not stealing wire. The decision was fair. There had been a proper investigation, proper disciplinary hearing, the penalty was reasonable."

So that the first matter by way of criticism made by Mr Watt-Pringle before us of the decision of the Tribunal, is that the Tribunal were not entitled to find that the reason was the offering of wire, but that the true reason was that the wire had been stolen. It seems from the reading of that letter, from a reading of the notes at the end of the hearing made by the learned Chairman and from the decision itself, that they were well aware of the question of wire in store and that in fact it was the offer to sell wire which was the gross misconduct. Indeed, when one looks at the evidence of Miss Gash herself, in the Notes of Evidence, she said:

"I dismissed him for gross misconduct, offering for sale materials belonging to J Smith & Sons (Clerkenwell) Ltd. The shortage did not influence me."

It seems to us therefore that there is overwhelming evidence before us and indications that the Tribunal perfectly properly considered the matter. They had to decide what was the reason, or the principle reason, and they clearly applied the provisions of Section 57 in finding that the principle reason and the material reason was the offering of the wire. There was no question here of finding that the reason was stealing wire in the past from the store.

The grounds of appeal on other issues, as indicated to us, can be stated as follows. First, it was alleged that the Industrial Tribunal had erred in law in concluding that this Company, through Miss Gash, was acting reasonably in accordance with the normal principles in concluding that the Applicant was guilty of the conduct alleged, and secondly, that the investigation was not fair or reasonable in the circumstances. Those matters really link together and can be examined together. The third ground of criticism is that the reasons given by the Industrial Tribunal were inadequate.

Looking secondly, therefore, to the question of grounds one and two, which we will look at together, the issue before the Tribunal is conveniently set out in Linfood Cash & Carry Ltd v. Thomson [1989] ICR 518 at p.524 at E, where this Court in a judgment said this:

"The issue is; did this employer upon the facts and circumstances reasonably accepted by him at the relevant time (which imports the notion that there had been sufficient investigation) act fairly and reach a reasonable and reasoned decision."

That was the issue which was before the Industrial Tribunal. What was the investigation? What was the evidence? What were the Company, through Miss Gash, entitled to accept and believe?

The Industrial Tribunal deal with this matter in paragraphs 3 to 7 of the decision. What happened, and I am going through the history of the facts now, was found to be as follows. On 24 November 1989, Miss Gash received a telephone call from the Area Manager at Enfield. A customer had apparently stopped dealing with Enfield quite abruptly, and a representative was sent to find out why. The customer said he had stopped because he was embarrassed by requests from one of the Company's drivers who had been offering to sell him wire as a private venture. Those offers had been made over a period of time, and frequently made. Miss Gash asked the Area Manager to make contact with the customer and get a full description of the driver. She was in fact given a very accurate description which physically and with regard to his topics of conversation, described the applicant. It is to be noted that that customer purchased only from the Company. The wire was on the Company's lorry, the customer did not know the driver's name, but he knew that he had been with the Respondents for six years. An important point followed, namely, that the only other driver with the Respondents was one who bore no resemblance to the Applicant, who made deliveries in the Nottingham area and who had only been with the Respondents for a few weeks. Armed with that information, Miss Gash interviewed Mr Preston, told him of the allegations, he said he knew nothing about it, it might have been a joke, pretending he was offering to sell him wire. Miss Gash told Mr Preston that she would have to investigate the matter and she suspended him on full pay. Before making further investigations she had given him another opportunity to explain matters and he again denied that anything had taken place.

On the 28th November, that is four days later, Mr Bell started on the paperwork and made enquiries of Enfield. He discovered that there had been a stock deficiency of certain types of wire.

Following on that initial interview Miss Gash went to see the customer. She visited his premises on the 29th November taking with her the Sales Representative from Enfield. When they saw the customer he was not prepared to have his name made public; he did not want any trouble and indeed he would not have volunteered the information unless specifically asked why he had ceased to deal with the Company. He clarified the situation about events in the past. He was asked by Miss Gash whether it was a joke; he did not think it could have been because the offer had been made on several occasions he mentioned that the wire was available on the vehicle. Miss Gash asked for a detailed description and she was given a description of the driver that he was a keen gardener, a talkative fellow and he had been with the Respondents for some years. That description corresponded with the Applicant. So here again, Miss Gash had confirmed by her own investigation what she had been told initially by the Area Manager of Enfield.

On the 30th November, the following day, she held the disciplinary hearing. Mr Bell was there. She told Mr Preston he had a right to have a representative present, but he did not want one. She told him all the information that she had, except the customer's name. Mr Preston denied that he had offered to sell the wire and she informed him ultimately that she was dismissing him for gross misconduct namely, offering for sale materials held by the Respondents and she informed him of his right of appeal.

So, the evidence which she gave followed very closely the indications given in the initial letter of dismissal dated that same day, the 30th November.

The fact that procedure was very much in the minds of the Tribunal is indicated by two passages in the learned Chairman's Notes of Evidence. First of all on page 18 there is a note that members had been asking Miss Gash about procedure and she, in answer to questions from the Tribunal said:

"I told him what the procedure was. I did not give him a copy."

and that clearly is a copy of the disciplinary procedure.

The Tribunal concentrated even more on procedure because they recalled Miss Gash and asked her in some detail about having seen the Managing Director. She had spoken to him and he told her that she would have to conduct the investigation on her own. She told him what had come to light and he had simply guided her without affecting her decision. He had merely advised her to do what she thought fit in the circumstances, and that was again a matter of investigation in the minds of the Industrial Tribunal.

The criticisms in detail are made in the helpful skeleton argument of Mr Watt-Pringle. In paragraph 5 and 6 he submits that the evidence and the investigation was unsatisfactory for a number of reasons:

"(1)The informant did not provide a detailed physical description of the driver"

On a reading of the reasons we are unable to accept that, it seems to us that the indication is quite clear that there was a detailed physical description.

"(2)There was no corroboration of the allegation."

That is true, it would be difficult for it to be corroborated, but Miss Gash had been to see the customer herself and had been able to weigh up the situation and his credibility. Then he makes two points:

"(3)The Appellant refused to resign and was willing to have the police called in"

and in that connection it was said that no specific mention was made about resignation or about dealing with police and his point was this, that if there was insufficient evidence to call in the police there was insufficient evidence upon which to dismiss him. It seems to us there is possible room for muddled thinking there. The reason was the offer, not the fact that any wire was missing from the store, and again the question of resignation is mentioned as to the police in paragraph 8 of the judgment. It shows that the Industrial Tribunal considered the matter and saw no particular point in it.

There is a last point made under this heading, namely that in his affidavit before us Mr Preston suggests that he had in the past recovered wire belonging to the Company, after a burglary, to the value of about £1,200 to £1,300. It is right that there is no record of that in the learned Chairman's Notes of Evidence. Mr Preston said he put it to Mr Bell but it is not recorded. It seems to us that it is unlikely that that was put specifically in that way, because if it had been put it would have needed careful investigation and detailed examination before it could possibly be of any real assistance to Mr Preston's case; the mere statement as such seems to us not to be of any great weight or indication and we feel bound there to accept the Notes of Evidence of the learned Chairman that that matter was not raised in that way.

So as far as the criticisms made on that score, we find no grounds upon which the decision of the Industrial Tribunal can be considered as flawed.

The second main limb of the criticisms under this heading is that the procedure was in error and Mr Watt-Pringle relies heavily on a number of cases, in particular that case of Linfood Cash & Carry to which we have already made reference. The first point about that is of course that that case did not purport to set down any rules, it was simply raising procedures which might be considered relevant according to the circumstances of the case and that is made absolutely clear on pages 522 E onwards.

The question of procedures was also referred to in a number of other authorities to which we were referred. The first was McLaren v. The National Coal Board [1988] ICR 370; that was a decision of the Court of Appeal but the real ratio of the decision there was that the standards of fairness do not change according to the circumstances. Natural justice is natural justice and although the facts of that case can be examined in detail it does not seem to us that a principle emerges there which is relevant to our present problems.

The second authority was Louies v. Coventry Hood & Seating Co Ltd [1990] ICR 54 a decision of this Court and there the question is summarised in the headnote and indicates that there is an important balance to be maintained in the fairness of the procedure and where there are statements in existence then the employee is entitled to know what is in those statements because by so doing he is entitled to know the case which is being made against him. There is no suggestion, nor could there be made, that he did not know the case that was being made against him.

The third decision drawn to our attention was Spink v. Express Foods Group Ltd [1990] IRLR 320 and that again deals with the principle in paragraph 26 that someone accused should know the case which he or she has to meet and should be able to be told the important parts of the evidence in support of that case, and have an opportunity to dispute it or to criticise it.

But the essential point here being made is that this was an informant, and therefore that the informant was not in fear, he merely did not want to be involved. That the Applicant was deprived of the opportunity of meeting his accuser, and that the Company should have reduced the information to a written statement, perhaps had it signed, so that Mr Preston could understand the case against him.

It seems to us that the Tribunal had all those points well in mind because they were looking at the procedure and seeing what criticism there was. We decide that we are unable to accept the criticism made of the decision on that ground.

The last main ground of appeal is that the reasons do not give a sufficiently clear account of the reasoning of the Industrial Tribunal. There is said to be no reference to the Applicant's own evidence; no reference to certain exculpating factors, namely that he refused to resign, that he wanted the matter reported to the police, that he wished to confront his accuser. There had been other wire missing and he had previously been honest in connection with the burglary. It was said again that Miss Gash's evidence seems to have been accepted and he does not know why. One possible reason why is that the letter of the 30th November was, if anything could have been, a note made at the time explaining exactly what she had done and exactly what had happened on the very day of the disciplinary hearing.

We were referred to two authorities in this connection, the first was Meek v. City of Birmingham District Council [1987] IRLR 250, the leading judgment in the Court of Appeal given by Lord Justice Bingham who in paragraph 8 indicated that the decision of an industrial tribunal must contain an outline of the story which has given rise to the complaint, a summary of the basic factual conclusions, a statement of the reasons which has led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they won or lost. There should be a sufficient account of the facts and of the reasoning to enable the EAT or on further appeal, this Court, to see whether any question of law arises.

Having read this decision it seems to us that it is perfectly clear the evidence set out in the Reasons shows that Mr Preston was the only driver who had had six years employment, a substantial period of time. He was described. Miss Gash had investigated the matter. Mr Preston knew full well the allegation against him. Miss Gash had to weigh up the situation and she decided after having investigated and believed what she did believe, that Mr Preston had been guilty of gross misconduct in offering this wire to a customer on a number of occasions. These reasons are admirably set out. When one looks at the Notes of Evidence it is abundantly clear why the Tribunal were able to do so with reasonable brevity because the evidence from Mr Preston was very short indeed and the majority of the evidence came from Miss Gash and Mr Bell and indeed seemed to follow from the contents of that letter of the 30th November 1989. So far as the procedure was concerned that was examined carefully by an Industrial Tribunal, we are quite unable to say that there are any grounds in law for disturbing this decision and this appeal is dismissed.