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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Babbar v John Lewis Plc [1992] UKEAT 728_91_2010 (20 October 1992)
URL: http://www.bailii.org/uk/cases/UKEAT/1992/728_91_2010.html
Cite as: [1992] UKEAT 728_91_2010
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At the Tribunal
Before
THE HONOURABLE MR JUSTICE WOOD MC (P)
(AS IN CHAMBERS)
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant MR P BABBAR
(Father)
For the Respondents MR R NUSSEY
(Of Counsel)
Mr R F Streit
Assistant Legal Adviser
John Lewis Partnership
171 Victoria Street
London
SW1E 5NN
MR JUSTICE WOOD (PRESIDENT): This is an appeal from a decision of the learned Deputy Registrar refusing to accept a Notice of Appeal because it did not comply with Rule 3 of the Employment Appeal Tribunal Rules 1980 whereby a Notice of Appeal must be accompanied by a copy of the Full Written Reasons of the decision or order of the Industrial Tribunal from which the appeal is brought. The running of time of 42 days for an appeal, runs from the date when the Full Written Reasons are sent to the Appellant.
This Court has power under Rule 32 to waive any requirement of the rules for the purposes of hearing an appeal. In the present case there are short Written Reasons and one of the considerations which we apply to a decision whether or not to allow the matter to proceed is whether that short summary Reasons are sufficiently clear for this Court to be able to see whether or not there is a valid point of law meriting argument on the appeal. If there is not then, in our discretion, we are likely to refuse to waive the provisions of Rule 3 and in those circumstances this appeal from the decision from the learned Deputy Registrar would be dismissed.
The real point, therefore, that I have to consider this morning, is whether on the face of the summary Reasons there is really any issue of law in which an error can be discerned which merits further argument. If I felt that there was even the beginning of an argument on a point of law I would allow this matter to go forward on the summary Reasons alone so that it could be argued inter partes.
The decision arose out of the dismissal of Miss Babbar, the Appellant, by John Lewis Partnership. She had been employed there for a number of years without any complaint about her behaviour and she is a person who suffers from a disability. As a result of that she takes a medication called "Clonazepam", which is I am told, a muscle relaxant. In April 1990 Miss Babbar took some goods from various departments and left the Oxford Street Store. She had been followed by two Store Detectives and was brought back into the Department Store. She was taken to the Manager's office, the Manager was Mr Melly.
There were conflicts of fact in the evidence of Mr Melly and of Miss Babbar. The Tribunal, although only deciding ultimately by a majority, nevertheless were unanimous in preferring the evidence of Mr Melly to that of the Applicant. It was on the issue of procedure that the Tribunal was divided. It seems to me, and indeed it is clearly so from the submissions made, that there is no issue of fact that Miss Babbar took goods from various departments and left the Store without paying for them. There is a procedure whereby employees can obtain goods on discount, but that is not the issue here, the issue alleged was straight shop lifting, dishonest theft.
Miss Babbar was taken to Mr Melly's office and there was a discussion, during which the question of medication arose. The Tribunal clearly directed themselves correctly in law, there was a very experienced Regional Chairman and the other Members were also experienced. This is a common every day issue of law and fact and I am able to discern no error of law in the approach by the Tribunal. They first of all looked to see whether there was a genuinely held belief on reasonable grounds, by Mr Melly for the management, that the Applicant had left the Store without intending to pay for these goods, and that was a unanimous decision. The Tribunal were unanimous that he was entitled, on reasonable grounds, to hold a genuine belief. The division was on the question of procedure. The minority Member criticised Mr Melly for not approaching a medical adviser rather than the nurse at the Store in seeking information about the medication, that the investigation only took some 11/2 hours and was rather too quick, and he was also critical of the question of the appeal and that the person hearing the appeal did not take into account sufficiently some additional medical evidence.
The majority, however, disagreed. They found that there had been a sufficient investigation, that Mr Stevens had carried out an adequate investigation into the probably effect of the drugs in question. The combination of drugs, which was the case being put forward by Mr Babbar, was in fact something raised later because there was an express finding that she did not say to Mr Melly that she was taking any medication other than the muscle relaxant.
Mr Babbar, the Father of the Appellant, who has appeared before us today, has really said everything that could be said on behalf of his daughter. She had been represented by a member of the Free Representation Unit before the Tribunal and the issues which Mr Babbar raised before us, are really issues of fact. He believes, and I accept fully that he believes, that his daughter was unfairly treated. He is convinced of her innocence and I can well understand that. He tells me that Mr West, who was one of the Store Detectives has, since the hearing before the Industrial Tribunal, been convicted of dishonesty. That may be so, but there were two Store Detectives, and the facts to which Mr West would have spoken were not really in issue, it was the procedural matters which were at issue, and he could give no evidence about that. Then it was said that the Partners' Counsellor, Mr Stevens who heard the appeal, was not really a counsellor in the sense he was trying to help Miss Babbar, but was a member of staff acting on behalf of the Store. That again was a matter that was decided by the Tribunal, because the minority Member, even he, is satisfied that the question of an appeal and the right of appeal to Mr Stevens was made clear. The fact that he is called a Counsellor merely indicates that that is a title he has, but it does not mean that he is acting on one side or the other. There is no suggestion before the Tribunal that that was so and I can find no indication in the decision that he was biased in the way he approached the hearing and the decision on that appeal.
This is a classic example of a case where the decision is short, but it is abundantly clear, all the relevant matters are set out. It was an issue of fact for the Tribunal, there is no error of law that I can possibly find here. The Tribunal divided on those issues of fact and unfortunately for Miss Babbar on those issues of fact the decision went against her.
This is a familiar situation and we can only help in appeals if there is an error of law, and we are quite unable to help on issues of fact. Despite the able way in which Mr Babbar has presented his daughter's case I am quite unable to find here that there was an error of law on the face of this document, I am quite satisfied there was not, and that in any event, therefore, even on the face of these summary reasons there would be no point of law here and that the appeal must inevitably fail.
Therefore, working backwards from there, in the exercise of our discretion here whether or not to apply Rule 3 strictly, I decide that the learned Deputy Registrar was quite right here, he did not give reasons but we are satisfied that he was right to refuse this Notice of Appeal because of the circumstances, really quite hopeless, and there has been a failure to comply with Rule 3 of the Employment Appeal Tribunal Rules. There is no basis for an appeal.
It follows therefore that this appeal must be dismissed.