United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 726_93_3011

Appeal No. EAT/726/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 30 November 1994

Before

HIS HONOUR JUDGE H J BYRT QC

MRS M L BOYLE

MR K M YOUNG CBE

---

TRAGO MILLS (FALMOUTH) LTD          APPELLANTS

J ROBERTS          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellant MR N MOORE

(SOLICITOR)

Stephens & Scown

26/28 Southernhay East

Exeter

Devon EX1 1RS.

For the Respondent MR O SEGAL

(OF COUNSEL)

Pattinson & Brewer

30 Great James Street

London WC1N 3HA.


 


JUDGE JOHN BYRT QC: This is an Appeal from the Industrial Tribunal's decision promulgated on 18 June of last year, when it was sitting at Truro. Its decision was to accept the employee's claim that he had been unfairly dismissed. The facts as found by the Tribunal are as follows:

Mr Roberts, the employee, had worked for something like six years for the Appellants in a shopping centre at Falmouth. He had a number of jobs which he carried out during that period of time and it was accepted that he had performed them satisfactorily. About the Christmas of 1992, he had a period of time off work (stress-related illness), but had returned to work in January 1993. At that time, it appears that there had been some petty pilfering in the centre's sweet store and some degree of suspicion had attached to Mr Roberts. The Appellants had a strict policy whereby anybody found guilty of pilfering sweets was subject to instant dismissal, even although the sweets concerned had in fact been put aside for destruction because in some way or other they were defective. That was a policy well known to Mr Roberts and to all other employees.

On 12 February 1993, Mr Roberts was told by Mr Hibbert (he is the Deputy Branch Manager) to go and get a paper. This was a ruse to get him out of the store and he was away for something like 10 minutes. On his return, he was directed to the sweet store to fulfil some function there. Unbeknown to Mr Roberts, a close circuit television had been installed, and Mr Hawke, the Security Manager, was sitting in an adjacent room watching what happened. Again, as part of the scheme of things, a box of broken chocolates had been positioned at the end of the sweet store, away from the close circuit television camera and at 9.00, Mr Hawke, watching the television, saw Mr Roberts make two furtive movements as if checking whether someone was coming up the stairs to the sweet store. He was also seen by Mr Hawke to be raising a cupped hand to the mouth as though about to eat some chocolate from the written-off box. On seeing that, Mr Hawke immediately ran round to the sweet store and asked Mr Roberts to come down with him to Mr Hibbert's office straight away. Mr Hawke, at that stage, did not think it was appropriate or sensible to check whether Mr Roberts had been eating chocolates or had one in his mouth. Mr Hibbert then asked Mr Hawke in the presence of Mr Roberts to relate what he had seen on the screen. He referred to the furtive movements and to the raising of the cupped hand to the mouth. On the strength of that account of the facts, as the Tribunal found, the Appellants promptly terminated Mr Roberts's employment.

There was an issue of fact at this particular stage. Mr. Hibbert said that after Mr Hawke had set out the facts, Mr Roberts admitted the theft, that is, admitted it before his dismissal. Mr Roberts said that he only made his admission after he had been dismissed. As part of their reasons, the Tribunal stated that save in one respect, where there was a disparity in the evidence between that of Mr Roberts and that of the Respondents, they preferred the evidence of Mr Roberts. On this particular issue as to when the admission was made, the Tribunal expressly stated they preferred the evidence of Mr Roberts and they accepted that the admissions he made, occurred after he had been dismissed. They regarded it as a matter for criticism of the Appellants that they afforded Mr Roberts no opportunity to have his say in response to what Mr Hawke had seen. The sequence of events thereafter is as follows:

After the dismissal, Mr Hibbert, Mr Hawke, and Mr Roberts, went to the sweet store to examine the chocolate in question. There was another issue of fact about that. There was evidence from Mr Hawke to the effect that part of the chocolate had been removed or eaten. Mr Roberts denied that he had actually eaten any and gave evidence to the effect that he had perhaps been seen licking his fingers because there was chocolate on them. The Tribunal were unable to come to any hard findings of fact about the state and condition of the chocolate itself.

Thereafter the Police were contacted. They arrived some 15 minutes later. They arrested Mr Roberts and apparently, after what the Tribunal regarded as an informal verbal warning, he made an admission to the Police to the effect that he was guilty of what was alleged against him. In evidence Mr Roberts stated that he was not making an admission of his guilt at all. He said he had misunderstood the question being put to him by the Police. On that particular point, the Tribunal made a finding that the Respondent did understand and knew exactly about what he was making an admission.

On the day of the hearing, the Tribunal stated its reasons for its decision, both on the question of liability and compensation, and in its findings made plain in paragraph 13 that they regarded Mr. Hibbert's attitude towards the investigation as somewhat cavalier. They found that Mr Roberts was dismissed solely on the strength of the observations of Mr Hawke. They found that the Appellants did not thoroughly investigate. In particular, they criticised the Appellants for not going to the store to find out the state of the chocolate prior to the decision to dismiss Mr Roberts. The Tribunal also found that, whilst the Appellants had a comprehensive disciplinary code, in this particular instance they did not apply it. They found that when Mr Roberts came down to Mr Hibbert's office, he was not afforded the opportunity of having a fellow employee with him. They found that the employers demonstrated an unreasonable approach to the issue of dismissal in that they did not properly investigate the matter, nor did they allow Mr Roberts to have his say before dismissal. They went on to find that the Appellants were guilty of procedural failures and concluded by saying:

"...we feel for all those reasons that this dismissal was unfair."

What next happened at the hearing was this; submissions were made as to the appropriate compensation to be paid to Mr Roberts. Mr Moore, who represented the employers, addressed the Tribunal on the basis that they had found the dismissal to be unfair on procedural grounds only. He therefore referred them to the decision of Polkey v A E Dayton Services Ltd. [1988] and submitted that they should therefore limit the amount of compensation payable to Mr Roberts to that period which would be taken up by following the appropriate disciplinary procedures and an Appeal therefrom. Mr Moore had represented that those procedures would take a week at the most. The Tribunal returned and without giving reasons awarded Mr Roberts substantial compensation well outside the limits Mr Moore had suggested. Mr Moore asked the Tribunal to state their reasons and as a result it was agreed that when the full reasons of the Tribunal's findings were sent out, they would include the Tribunal's reasons why the submissions based on Polkey had not been accepted.

We think there is no doubt that the Tribunal intended its decisions on both liability and compensation to be made that day. Later, when the decision came to be promulgated, the insertions the Chairman of the Tribunal made, as promised, amounted to two new paragraphs which now feature in the full stated reasons as paragraphs 15 and 16. There was also an additional sentence, albeit of some considerable significance, inserted into paragraph 21. Mr Moore has submitted before us today that, in inserting the new paragraphs 15 and 16 and the additional sentence in paragraph 21, the Tribunal had introduced a totally new finding which had not formed part of their original decision but which became the basis of the Tribunal's findings, namely that the Appellants had unfairly dismissed Mr Roberts not only by reason of defects in their disciplinary procedures, but also for substantive reasons as well. We were referred by Mr Moore today to two decisions. One was the case of Springrove Services Group plc v Hickinbottom [1990] ICR 111, a case in which the Tribunal having decided in favour of the employers on the day of the hearing, changed their decision by the time full stated reasons were given, so that the employee won his claim. That was held to be way outside the power of a Tribunal to change its decision after it had once been given. The second case was Arthur Guinness and Company v Green [1989] ICR 241 in which the Tribunal had found on the day of the hearing that the employee could have been dismissed six months from the date of his dismissal and made an order for compensation accordingly. By the time they came to state their full reasons in writing, they had altered their six month period to something substantially longer, and, again, it was held that the alteration was a departure from the original decision which was way outside the power of the Tribunal to make. Mr Moore submits that those paragraphs 15 and 16 and the sentence in paragraph 21 should be deleted from the Tribunal's Reasons as being way outside the power of the Tribunal to add.

We have considered that submission as well as those advanced by Mr Segal for the employers. We have assessed the tenor of the findings made by the Tribunal between paragraphs 13 and 19 of their originally recorded decision and we are satisfied that paragraphs 15 and 16 in fact amounted to nothing more than a summary of the findings of facts which had been made by the Tribunal in those earlier paragraphs. In particular, we are satisfied that the Tribunal found the Appellants had conducted an unsatisfactory and therefore an unreasonable investigation. The Tribunal has clearly directed their minds to the essential tests set out in the case of British Home Stores -v- Burchell and found that the employers had failed to satisfy the last of those tests.

So far as paragraph 21 is concerned, Mr Segal conceded that there was nothing in the transcript of the original hearing which would justify a finding that the employers had not established a reason for dismissal. Mr Segal submits that, that being the case, all one has to do is to delete that one sentence and the rest of the fully stated reasons would then stand as a perfectly valid and proper decision of the Tribunal. We accept that submission.

Mr Moore did particularise other grounds for complaint. Essentially they were that the Tribunal did not pay sufficient attention to the evidence of certain witnesses or to various parts of the evidence relating to the condition of the chocolate and so on. At this point, we reiterate that having seen all the witnesses in the witness box, the Tribunal preferred the evidence of Mr Roberts to that of the Appellants' witnesses save in one respect and that being so, we feel that, as an Appeal Tribunal ourselves, it is not right or proper we should set about substituting our own views and assessments for those of the Tribunal provided we are satisfied that there was good ground and reasonable evidence available to the Tribunal upon which it could base its decisions. We are satisfied that there was evidence which would enable the Tribunal to find for Mr Roberts in respect of these crucial issues and we are not prepared to disturb those findings of fact.

Another substantial point raised by Mr Moore is based upon the Tribunal's findings that Mr Roberts was 80% guilty of contributory conduct by reason of the admissions of guilt he made. Mr Moore says that the amount of the percentage was such that it indicated that the Tribunal were satisfied the admissions made by Mr Roberts after his dismissal were in substance true, and from this he argues that the Tribunal must have been satisfied Mr Roberts was guilty of serious pre-dismissal conduct. Mr Segal, on the other hand, says that if that is right, the Tribunal would not, as it stated in it's reasons, have thought long and hard before coming to their decision on this particular point. Had the Tribunal believed that Mr Roberts's admissions were true, there would not have been a finding of 80% contributory conduct but one of 100%. Having considered the matter, we find that we cannot draw any reliable inferences from the 80% figure. We have wondered whether in fact this is one of those cases where the matter should be remitted to the original Tribunal for the clarification of it's views on this particular point, but have decided that, as this is not the subject of a cross-appeal, the EAT should not refer the matter back to the original Tribunal. We wish to make plain that we are satisfied no reliable inference can be drawn either way which would affect our decision in this Appeal.

In summary, we are satisfied that there was evidence which would enable the Tribunal to find that, owing to the casual investigation conducted by the Appellants, the dismissal was unfair for substantive reasons.

So far as the statement in the amended reasons that the employers had failed to discharge the burden under Section 57 (2), we accept Mr Moore's submission that there is no evidence which would enable the Tribunal to make such a finding. However, having regard to the conclusions that I have earlier stated, we are of the opinion that this Appeal should be dismissed.