United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 169_93_1111

Appeal No. EAT/169/93


 

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11 November 1994

Before

HIS HONOUR JUDGE BULL QC

MR J C RAMSAY

MR S M SPRINGER MBE

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THE POST OFFICE          APPELLANTS

MR D C SHEARER & OTHERS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR DAVID GRIFFITH-

JONES (of Counsel)

Messrs Hammond Suddards

2 Park Lane

Leeds LS3 1ES

For the Respondents MR MICHAEL KAY

(of Counsel)

Messrs Simpson Millar

101 Borough High Street

London Bridge

London SE1 1NL


 


JUDGE BULL QC: This is an appeal by the employer, the Post Office, against the decision of the Industrial Tribunal sitting at Leeds on 14 and 15 December 1992 and 5 January 1993, whereby it upheld complaints by the Respondents that they had been unfairly dismissed. Full reasons were sent to the parties on 26 January 1993.

The three Respondents were postmen based at Withernsea, North Humberside. On 20 December 1991 a complaint was received from a Mrs Rees that her 9 year old son had been grabbed by a postman and dragged into the Post Office, where a sack was put over his head. The three respondent postmen accepted that they were present in the Post Office, when some incident happened with a 9 year old boy but refuted the substance of that complaint. At its highest it was an incident where a cheeky little boy hit out, perhaps in fun, at someone of whom he was in no way afraid and received a jocular threat which he did not take seriously. Enquiries by Mr Guilding and Mr Livick for the employers were hampered by their inability to interview the boy on the detail of the complaint.

This appeal is launched upon the basis that the Industrial Tribunal substituted its own view as to the facts for that of the employers, when it decided that there were no grounds for finding an assault by the Respondents of sufficient seriousness to justify dismissal.

Mr Griffith-Jones further submits, upon analysis, that the conclusion of the Industrial Tribunal was extraordinary to such a degree that their reasoning cannot bear scrutiny and he does not shrink from describing the decision in this respect as perverse.

The tests to be applied by the Industrial Tribunal, in this case, are of course those which flow from the well-known and often rehearsed words of Mr Justice Arnold in the case of British Home Stores Ltd v Burchell [1980] ICR 303, the passage from which I cite to be found at page 304:

"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question ... entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employers had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being 'sure', as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter 'beyond reasonable doubt'. The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstances be a reasonable conclusion."

The Industrial Tribunal found that the first test, namely, the fact of belief, was satisfied. The issues raised by this appeal arise from the Industrial Tribunal's approach to the remaining two tests adumbrated in the Burchell case, as they have become known.

The focus of criticism is paragraph 22 of the reasons. At an early stage in this paragraph the Industrial Tribunal posed for itself this question:

"... the question we have to ask is whether the applicants were dismissed for a reason in which the respondent truly believed on reasonable grounds after an adequate and reasonable investigation had been made."

We read this to encapsulate both the second and third limbs of the test in Burchell, mainly, that the employer had in his mind reasonable grounds upon which to sustain that belief and, thirdly, that the employer at any rate at the final stage at which he formed that belief on those grounds carried out as much investigation into the matter as was reasonable in all the circumstances of the case. The answers which the Industrial Tribunal gave to the questions thus posed is to be found set out in paragraph 22. Their analysis concludes with the passage:

"It was perhaps unfortunate that the boy could not be interviewed in detail to get an account of precisely what his complaint was so that this evidence could be put to the applicants. In effect the respondent found itself, through no fault of its own, in a position where it simply could not make detailed findings as to precisely what had been said and done on the relevant occasion and in what order and by whom, so that the actions of the respective applicants could be properly evaluated and the degree of guilt established. What was ultimately believed by Mr Guilding on the one hand or Mr Livick on the other could have been true but once the evidence of Mrs Rees and her son was not accepted as wholly reliable then on what evidence remained it would be possible to suspect at the one end of the spectrum an event in which a small child was reduced to terror by a number of larger adults crowding round him and threatening him, and at the other the situation where a cheeky little boy hit out perhaps in fun at someone of whom he was in no way afraid followed by a jocular threat which he did not take seriously. In those circumstances we feel that the respondent has not shown reasonable grounds for coming to the conclusion it did and that dismissal on those particular grounds was therefore unfair."

We read this passage as showing that the Industrial Tribunal reached the conclusion that the employer had, at the final stage at which the belief in the ground for dismissal was formed, had not carried out as much investigation into the matter as was reasonable in all the circumstances of the case and that the investigation was not such that a reasonable employer could properly and reasonably have regarded as sufficient, because the evidence before the employer was so unsatisfactory and inconclusive. Thus it seems to us they conclude that no reasonable employer could have had in his mind reasonable grounds upon which to sustain a reasonable suspicion amounting to belief in the guilt by the employees of their alleged misconduct upon the totality of the evidence.

We have scrutinized the respects in which Mr Griffith-Jones criticizes the Tribunal's reasoning but, in our judgment, there was evidence upon which the Industrial Tribunal could have reached the conclusions to which it came. We are unable to accept the interpretation of the decision, which suggests that the Tribunal substituted its own view of the facts for that of the employers and, in this context, we have considered but do not find any assistance from an analysis of their second decision upon remedies.

We have further deliberated upon the reasoning of Mr Griffith-Jones when he asserts that the decision was perverse. In this extemporary judgment it is perhaps unnecessary to rehearse the well-known dictum of Lord Donaldson of Lymington, Master of the Rolls, in Piggott Brothers & Co Ltd v Jackson and others but we are wholly unable to agree with Mr Griffith-Jones in his criticisms. In our judgment, the decision under appeal was a permissible option. We are driven to the conclusion that we can detect no error of law in this Industrial Tribunal and most certainly we cannot say that in any of the respects which are put forward or, indeed, any other respect that occurs to us, this Industrial Tribunal acted in a way or reached a conclusion that no reasonable Tribunal could have done.

It follows, therefore, that this appeal must be dismissed and we so dismiss it.