United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 303_93_1502

Appeal No. EAT/303/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 15 February 1994

Before

THE HONOURABLE MR JUSTICE WATERHOUSE

MR A C BLYGHTON

MR J C RAMSAY

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MS G STUART-HUTCHESTON           APPELLANT

BRENT WALKER GROUP PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR W STONE

(ADVICE WORKER)

Brighton Rights Advice

Centre

102A North Road

Brighton

East Sussex BN1 1YE


 


MR JUSTICE WATERHOUSE: This is the preliminary hearing of an appeal by an employee against the unanimous decision of an Industrial Tribunal sitting at Brighton, which held that the Appellant had not been unfairly dismissed. The hearing before the Tribunal occupied two days in January and March 1993 and the Chairman's statement of full reasons for the Tribunal's decision was sent to the parties on 26 March 1993.

The background to the case was that the Appellant had been employed from 2 July 1984 to 1 April 1992 in the Respondents' casino in Brighton. In March 1992 it came to the notice of the Respondents that it was being suggested that a number of their employees at Brighton had some involvement with illegal drugs. They reported the matter to the police and to the Gaming Licensing Board, who were ultimately responsible for the licensing of the casino. A preliminary investigation was carried out by the police but the Respondents were told, after a short time, that they were free to carry out their own internal investigation and it is that investigation that is the subject of criticism on behalf of the Appellant.

The first development, as far as the Appellant was concerned, was that she was interviewed by the Respondents' security officer in the presence of the general manager at Brighton. The interview took place at about 3.45 am on 24 March 1992; that was at the end of the Appellant's night shift. Evidence was produced as to the content of that interview in the form of a type-written precis, which had apparently been made up a few days after 24 March 1992 from manuscript notes made by the security officer, Mr Lindow, at the time of the interview. The general manager, Mr Hamilton, confirmed in evidence that the precis was an accurate record of the interview except in one particular: the notes suggested that the Appellant had given the impression that she took drugs regularly whereas Mr Hamilton's view was that she had said the opposite, namely that she did not take them regularly.

According to the evidence, the initial part of the interview had dealt with the general question of alleged drug dealing in the casino but the questioner had gone on to ask the Appellant about her own personal habits in relation to drugs. He had asked her "Do you take illegal drugs?" to which she had replied "Not on the premises but I do at home". She was asked "Do you take cocaine regularly" to which she replied "No. The time before my birthday was at Christmas". Then in answer to the question "Have you taken "Speed?" she replied "Have tried Speed a long time ago. I don't like it".

The important part of that interview, as subsequent events show, was the questioning about cocaine and it seems clear that the answer recorded from the Appellant must have been preceded by some earlier discussion to give meaning to the answer "No. The time before my birthday was at Christmas".

The next interview was in the form of a disciplinary hearing on 31 March 1992. It seems that notice of that was given to the Appellant at a time when she had been suspended pending the hearing, no doubt in the light of the responses that she had given at the initial interview. It is necessary to refer also to one other piece of evidence before going on to deal with the disciplinary hearing. At some stage before the first interview of the Appellant had taken place, Mr Lindow had obtained a statement from a fellow employee, Mrs S Norton, which contained the following sentences:

"I know that Gloria Hutcheson does Speed. She told me. Last time she told me was about six months ago. She also offered me Cocaine. This was when I was at her house. She had already taken some. It was her birthday. I called around with her present. It was about eight fifteen, Saturday, 14 March 1992".

That background information obtained by Mr Lindow would have influenced his questioning of the Appellant on 24 March 1992 and it explains the form of the reply by the Appellant about her use of cocaine. However, she says that she was not told about the statement by Mrs S Norton and the Tribunal accepted that the statement was not disclosed to her either at the meeting on 24 March or at the disciplinary hearing.

Her evidence about the matter was that Mrs Norton had called to see her on her birthday on 14 March 1992 but she denied offering Mrs Norton any cocaine. It must be said also that, although the fact of the statement was recorded by the Tribunal in the Statement of their Reasons for their decision, they did not make any comment about that piece of evidence and it does not appear to have influenced their ultimate decision.

The disciplinary hearing on 31 March was in the presence of the operations director of the Respondents, Mr K Rouse, and the secretary who took notes. There was a reasonably full typewritten copy of those notes before the Tribunal. At the disciplinary hearing the Appellant was asked whether she was aware why the hearing was being called and she replied that she did. She was reminded that she had admitted to Mr Lindow that she had used drugs to which she replied "Yes. In the privacy of my own home". She was then asked if she was aware of the illegality to which she replied "Yes. I am". She was also reminded that she had admitted taking cocaine twice and was asked if she wished to deny it, to which she replied "I have taken it in my own home". Towards the end of the hearing she was asked if she had taken speed and replied "Years ago". During the hearing she made the point that she should not have admitted taking cocaine (that is, of course, at the first interview) to which Mr Rouse replied "No, that was unfortunate".

On the basis of that hearing Mr Rouse took the decision to dismiss the Appellant and that decision was communicated to her by a letter dated 1 April 1992 from Mr Hamilton. The letter indicated that, after due deliberation, he was satisfied that her behaviour constituted gross misconduct and he said:

"During the hearing you admitted:

(a) Knowledge of other staff who were involved with an illegal drug and smoking that illegal drug in their own home, and who have not told anyone.

(b) Using, and involved with an illegal drug known as cocaine, in their own home and who have not told anyone."

The use of the same phrase "their own home" in (b) as well as in (a) was not very grammatical in relation to the Appellant because it seems clear that the understanding of Mr Hamilton was that she had used an illegal drug known as cocaine in her own home on the two occasions to which reference has been made.

The finding of the Tribunal in respect of that decision was that the position in relation to licensing of the casino was such that any criminal misconduct on the part of an employee could be treated by the Respondents as gross misconduct for disciplinary purposes. As we understand the position, the Appellant did not have to be certified by the Board in her particular work, having regard to the nature of that work, but the importance of avoiding criminal misconduct was recorded at page 13 of the staff handbook, which was handed to the Appellant and for which she had signed a receipt on 15 May 1987.

Following the dismissal of the Appellant she availed herself of her right of appeal and an appeal was heard on 15 April 1992 by the managing director of the Respondents' casino division, Mrs Raha. At that hearing the Appellant said that she did not understand why she had been dismissed so it was explained to her that it was because of her admitted use of cocaine. The Appellant then responded by saying that her involvement in cocaine had occurred before she had joined the Respondents and she denied that she had used it either on her birthday or the preceding Christmas, that is 14 March 1992 or Christmas 1991.

The Tribunal's findings do not include any detailed account of the hearing before Mrs Raha but they do record that Mrs Raha's evidence was that she was 99% certain, at the end of it, that the Appellant had not been telling the truth. However, she thought it appropriate to check with both Mr Hamilton and Mr Rouse the accuracy of the allegation that, at the interview on 24 March and again at the disciplinary hearing on 31 March, the Appellant had admitted her involvement with cocaine since joining the Respondents in contrast to her admission about being involved with speed before doing so. Having confirmed that with Mr Hamilton and Mr Rouse, Mrs Raha then dismissed the appeal and the Appellant was duly told by letter dated 22 April 1992.

The Tribunal in their reasons set out a full account of the Appellant's complaints about what had occurred at the hearings. In particular, she stressed that she had not been involved with cocaine during the time of her employment by the Respondents and argued that Mr Lindow, Mr Hamilton and Mr Rouse were all wrong in believing that she had made any contrary admission. However, the conclusion drawn by the Tribunal was that they had no reason to disbelieve the evidence that they had heard from Mr Hamilton about the interview on 24 March and that she had admitted taking cocaine on the two dates referred to. The Tribunal attached importance to the fact that she had specifically said that her taking of speed had occurred many years before, in contrast to her failure to say so in relation to the cocaine. The Tribunal thought therefore that the employers were entitled to infer that her consumption of cocaine was recent quite apart from the reference to specific dates.

This point was made by the Tribunal, particularly in relation to the first interview, but also in respect of the disciplinary hearing, because they said that the seriousness of the matter was pointed out at the disciplinary hearing and that the Appellant had had an opportunity to make her position entirely clear instead of just commenting that she ought not to have admitted taking cocaine at the first interview. Thus, the Tribunal concluded that it was impossible to criticise Mr Rouse for believing that, whilst an employee of the Respondents, the Appellant had in the recent past taken cocaine. Similarly, it was impossible to fault Mrs Raha for not being persuaded by the Appellant to the contrary on the hearing of the appeal.

The findings by the employers in relation to the taking of cocaine were of course crucial to the decision of the Tribunal and it is upon that aspect of the case that the argument in support of the grounds of appeal before us has largely been focused. The Tribunal found that the reason for the Appellant's dismissal was the reason related to conduct and that the decision to dismiss was within the band of reasonable responses despite the fact that there was no evidence that the Appellant had taken drugs in such a way as to affect her performance in her own work. The case for the Respondents, according to the Tribunal, was that the GLB exercised very tight control on the holders of gaming licences and that it had been made clear by the GLB that evidence of drug involvement by the proprietors or their employees would put in jeopardy the renewal of their licence to operate the casino. The Tribunal accordingly had no hesitation in saying that the dismissal was within the band of reasonable responses and they took the view that the employers were left with no alternative on the information that they had.

In presenting the grounds of appeal on behalf of the Appellant Mr Stone has relied upon the familiar passage in the judgment of this Appeal Tribunal delivered by Arnold J as he then was in the case of British Home Stores v Burchell [1980] ICR 303, the relevant passage appearing at page 304C in the following terms:

"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of misconduct in question (usually, though not necessarily, dishonest conduct) 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."

The first ground of appeal relied upon by Mr Stone is that the Tribunal misdirected themselves in applying those principles. It is said that the Tribunal failed to consider whether or not the Respondents had a genuine belief based on reasonable grounds following a reasonable investigation and instead substituted their own conclusion based on the evidence before them. Although that criticism is widely stated, it has emerged in the course of argument that the Appellant cannot contend that the Respondent employers did not genuinely believe that the Appellant had been guilty of the misconduct alleged, that is clear from many passages in the finding of the Tribunal who, in effect, say that they would have reached much the same conclusion themselves. Thus, it is unarguable that there was any error of law in relation to the first Burchell requirement.

The second and third requirements, namely, whether there were reasonable grounds for the belief and whether there was a reasonable investigation, are very much bound up with each other and it is to those parts of the overall test that the attack on behalf of the Appellant has been directed. It is suggested that there was an inadequate investigation by the Respondents' management and that that gave rise to a misunderstanding by the Respondents as to the true position of the Appellant in relation to cocaine. She says that the true position is that she had not touched cocaine at any time after she entered the Respondents' employment and that, if the matter had been pursued properly (if, for example, she had been told precisely what was alleged against her and of what Mrs Norton had alleged in her statement), the answer that the Appellant would have given would have clarified her position. This would have eliminated any misunderstanding on the part in particular, of Mrs Raha but also, probably, on the part of Mr Rouse at the earlier disciplinary hearing on 31 March.

This is the most powerful point that the Appellant can make. Unhappily, however, it does not raise any true point of law. It involves a rehashing of the arguments that were advanced at the hearing before the Tribunal below. There is no doubt at all that the Tribunal examined in considerable detail the procedural steps taken by the Respondents and they had the benefit of seeing summaries of the relevant interviews. The Tribunal undoubtedly thought that there had been some procedural lapses, or shortcomings, in the course of the hearings between 24 March and 15 April 1992 and were not unsympathetic to the criticisms that had been made on behalf of the Appellant. In the end, however, the question whether the investigation was adequate was a question of fact primarily for the Tribunal below to decide. They did consider the steps taken by the Respondents to check that the alleged admissions by the Appellant had been made. The checks made by Mr Rouse and by Mrs Raha had all produced affirmative answers from the persons who were questioned and, on the basis of the Tribunal's findings, the Appellant did have an adequate opportunity at the disciplinary hearing on 31 March to make her position clear in relation to cocaine. It was not until the appeal hearing that she expressly denied having taken cocaine whilst an employee of the Respondents, according to the findings of the Tribunal, and that was obviously a circumstance to which the Tribunal could properly pay considerable attention, as could the employers in reaching a conclusion as to whether or not misconduct on her part had been proved.

It may be that this is a case in which the Appellant was not very articulate and that her failure to make her position clear earlier stemmed largely from that or from an inadequate understanding of the charge against her, but these were all matters for the Tribunal to consider and there is nothing in the Statement of Reasons before us to suggest that they made an error by failing to have them in mind. In the end everything turned on their assessment of the evidence and there is no arguable point of law on which the appeal could justifiably proceed to a full hearing.

The other matters raised in the ground of appeal are even less arguable than the point with which we have dealt in some detail. In the proposed ground (ii) it is suggested that there was a failure by the Respondents to consider alternative employment and that this was a circumstance which was relevant to the reasonableness of the response of the Respondents to the situation. There is no hint, however, in the Statement of Reasons that this point was ever argued as a separate point before the Industrial Tribunal. One of the answers given by Mr Stone when asked what he had in mind was that "Something less than dismissal in the form of a written warning might have been appropriate". That is not, however, what is stated in the ground of appeal. Mr Stone submitted that were other capacities in which the Appellant could have been employed within the Brighton part of the Respondents' organisation, but we have no material before us on that issue and we cannot accept that it was ventilated as a serious possibility at the hearing before the Industrial Tribunal. The fact is that all employees who had any relationship with the casino had been warned about the danger of criminal misconduct because of the licensing position and the case for the Appellant was not conducted on the basis that there was any alternative employment which could have been offered to the Appellant by the Respondents in these particular circumstances.

The remaining ground of appeal alleges perverseness on the part of the Industrial Tribunal on the basis that no Tribunal properly directing themselves as to the law could have reached the conclusions on the evidence that we have indicated. One subsidiary allegation made in support of the this assertion is that the Tribunal made a finding of fact on the basis of the statement of Mrs S Norton without hearing her but that is directly contrary to the statement of reasons. The Tribunal did not purport to find that Mrs Norton had given a correct account of events on the Appellant's birthday. More generally the position is that, once the Tribunal had investigated the various interviews and the inferences drawn by the Respondents from them, they were entitled to reach the conclusion that they did, whether or not another Tribunal would have reached the same conclusion. We are certainly not prepared to say that their reasoning was perverse and we have no reason to think that the argument would be strengthened or emerge more forcefully at a full hearing before the Appeal Tribunal.

For all those reasons, therefore, but not without some regret, we must dismiss the appeal.