United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 816_93_0802

Appeal No. EAT/816/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8th February 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS M L BOYLE

MR J A SCOULLER

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MR N M ADAMS          APPELLANT

LIGHTFREIGHT LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MISS J LEVY

(Of Counsel)

Messrs Howard Perkins

& Co

4/4 Teville Road

Worthing

Sussex

BN11 1UX


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against a decision of the Industrial Tribunal held at Southampton on the 19th August 1993. The Tribunal heard an application by Mr Adams, a lorry driver employed by Lightfreight Limited, the Respondent to the application. His complaint was that he had been unfairly dismissed.

The Tribunal came to a unanimous decision. The decision was that Mr Adams, who had worked for Lightfreight since April 1988, was dismissed on the 23rd October 1992; that the reason for the dismissal was conduct, within the meaning of Section 57 of the Employment Protection (Consolidation) Act 1978; and that the dismissal was unfair.

The Tribunal, however, made no award of compensation for the reasons stated in paragraph 14 of their decision:

"The applicant [Mr Adams] was the author of his own misfortune and we assess his contribution at 100%."

There is no appeal by Lightfreight against the ruling of unfair dismissal. The appeal is by Mr Adams against the refusal of the Tribunal to make an award of compensation in his favour.

The Notice of Appeal was given on the 4th October 1993. It was, we understand, a document drafted by the Citizens' Advice Bureau. Miss Levy, who appeared for Mr Adams at this preliminary hearing, asked if she could have leave to substitute, for that Notice of Appeal, a new Notice of Appeal setting out, in a more familiar legal form, the precise grounds on which the appeal was brought. We allowed Miss Levy to address us on these draft grounds on the basis that, if we were satisfied that they raised an arguable point of law, then we would give leave for the new draft Notice of Appeal to be substituted for the first Notice. We would then allow the matter to go to a full hearing. If, however, we were not satisfied that these new grounds raised an arguable point of law there would be no point in giving leave to substitute this document for the earlier one.

Is there an arguable point raised on this appeal? In order to answer that question it is necessary to look at the decision, and the way in which the Tribunal reached the conclusion, that, although there was unfair dismissal, no compensation should be awarded.

Mr Adams was dismissed on the 23rd October 1992. On the 19th January 1993 he presented a complaint of unfair dismissal. His complaint was disputed by the employers, who by their Notice of Appearance, dated 28th January 1993, stated that the reason for dismissal was:

"Unauthorised possession of Company Property and theft from the Company and disclosure of this information."

The Tribunal dealt with this matter in a commendably clear way. They stated the issue in the first two paragraphs of the decision, namely that Mr Adams had been employed as a lorry driver and was claiming that he was unfairly dismissed on 23rd October 1992. They stated that the employers' case was, that they had dismissed him, but had done so on the grounds of misconduct and had acted fairly.

The Tribunal referred to the documents and to the evidence which they had heard from Mr Rawlings, the Managing Director of the respondent Company, and to the evidence from Mr Adams. In paragraphs 4, 5, 6 and 7 the Tribunal summarised the evidence given by Mr Rawlings. The substance of the evidence, relevant for present purposes, is that Mr Adams had unauthorised access to private and confidential documents in envelopes which had been marked "For the attention of the Depot Manager". Mr Rawlings gave evidence that the documents had been photocopied; that Mr Adams confirmed that that is what he had done; and that it was pointed out to him that these were private and confidential documents. Mr Adams apologised for that.

The evidence of Mr Rawlings, as summarised in the last sentence of paragraph 6, was that:

"Mr Rawlings took the view that by entering the office and taking the document from the private envelope and photocopying it, the applicant [Mr Adams] had misconducted himself by breaking their trust and they could no longer trust him. They accordingly dismissed him."

Paragraph 8, 9 and 10 of the decision contain a summary by the Tribunal of the evidence from Mr Adams. As the Tribunal pointed out in paragraph 11, there were conflicts between the evidence given by Mr Rawlings and the evidence given by Mr Adams.

The Tribunal directed their attention to the conflict. In resolving the conflict they stated they had regard to the demeanour of the individuals who gave evidence. They stated in a crucial passage: (paragraph 11)

"we have formed a view that, in general terms, the evidence of Mr Rawlings, is to be preferred to that of the applicant. We are satisfied that the discussion on 20 October followed the lines set out in the note and that the applicant was asked if he had removed documents from an envelope marked "For the attention of Mr Foster". We are satisfied that the respondents believed that this is what he had done. The respondents told us that between Wednesday and Thursday they confirmed the telephone conversation with Mr Wathan and we are satisfied that the respondents had sufficient information before them on which they were justified in forming the view that the applicant had unauthorised access to documents. We are satisfied that in the circumstances they had undertaken as much enquiry as was reasonably necessary."

It is important to note two things. The Tribunal were first of all dealing with the resolution of the conflict of evidence. They did this by accepting the evidence of Mr Rawlings as preferable to the evidence of Mr Adams. It is true that they did so, as Miss Levy pointed out, with the qualification:

"in general terms".

The Tribunal, having resolved that conflict, followed what is commonly known as the Burchell test of the stages in which an employer should deal with cases of suspected misconduct. They asked themselves whether the employers believed there had been misconduct by Mr Adams. They found that they did believe that. They asked themselves whether there were reasonable grounds for that belief. They found that there were. They had to ask, thirdly, whether the employers had undertaken reasonable enquiries into the suspected misconduct. Again, that question was answered in favour of the employers. The Tribunal moved to a separate question as to whether the employers had acted fairly in relation to the dismissal. It is not necessary to go into the details of this since there is no appeal from the Tribunal's finding that a fair procedure had not been followed and, therefore, the dismissal was procedurally unfair.

The next crucial part of the decision is the part that deals with the decision not to award compensation. The Tribunal said in paragraph 14:

"Having found that the dismissal was procedurally unfair, we have to consider whether a fair procedure might have resulted in a different outcome. Nothing was said to the applicants on 23 October [that the was date of dismissal] which in our view, could possibly have lead to any other outcome. The applicant was the author of his own misfortune and we assess his contribution at 100%.

15 The applicant has indicated that he would not seek orders for re-instatement or re-engagement leaving only the option of compensation. For the reasons explained above we are satisfied that there should be no award of compensation."

The Tribunal has power to reduce compensation for unfair dismissal under Section 74(6) of the 1978 Act:

"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."

The Tribunal made a clear finding of fact that the Applicant, Mr Adams, had contributed to his dismissal by his misconduct. They therefore exercised the power to make the reduction in compensation on the basis that, if a fair procedure had been followed, it would still have resulted in his dismissal.

The main criticism made of the decision, which, in our judgment, was a full and careful one, was of the passage in paragraph 11 which resolved the conflict of evidence by simply saying that "in general terms" the Tribunal preferred the evidence of Mr Rawlings to that of Mr Adams.

Miss Levy, in her draft Notice of Appeal, submitted that there was an error of law on the part of the Tribunal, because it failed to do what it should have done; that is to consider all the particular conduct or acts of the employee on which its decision to make 100% reduction was based. The complaint was that no specific finding of fact had been made about Mr Adams' conduct. It was also argued that Mr Adams had not been given an opportunity to give evidence specifically on the matter of conduct. It was argued that Mr Adams had not been given an opportunity to give evidence, specifically, on the matter of conduct. It is also complained that the Tribunal erred in law in failing to distinguish between the test to be applied for the consideration of the issue of unfair dismissal, which is the Burchell test, applying to cases of misconduct, and the test to be applied for the reduction of an award in compensation. The Tribunal erred in taking into account the reasonableness of the employer's conduct, when the sole issue was the conduct of the employee.

Miss Levy's grounds of appeal put the case of Mr Adams on this appeal more clearly than the original Notice of Appeal. We are grateful to her for that clarification. Nevertheless, we are unable to see in these points any arguable question of law which should be considered at a full hearing. It is well established that the Employment Appeal Tribunal does not treat a decision of the industrial tribunal as if it were a statute or a pleading which is to be taken apart, sentence by sentence, word by word. A broad approach is taken to see if the Tribunal has correctly directed itself on the law and applied it to the evidence before it. In our view, the statement in paragraph 11, that the Tribunal, "in general terms", preferred the evidence of Mr Rawlings was a resolution of the conflict of evidence both for the issue of the Burchell test in deciding whether there was an unfair dismissal or not and for the purpose of deciding the question of contribution. It is clear to us that when the Tribunal said in paragraph 11 that it preferred the evidence of Mr Rawlings, "in general terms", it was accepting, in all respects that were material to the decision, the evidence of Mr Rawlings summarised in paragraphs 4, 5, 6 and 7 of the decision and that it was rejecting, so far as it was material, all the points of evidence given by Mr Adams which were summarised in paragraphs 8, 9 and 10.

Although at that stage the Tribunal was only considering the question of fair dismissal, it is clear, when one goes to the question of contribution in paragraph 14 where the Tribunal said "Mr Adams was the author of his own misfortune", that they were referring to the evidence of Mr Rawlings which they had accepted. That evidence, on the view of the Tribunal, established that there had indeed been misconduct on the part of Mr Adams in relation to the access to and use of private documents.

For those reasons we are unable to see what purpose would be served in allowing this matter to go to a full hearing. There is no arguable point of law. This is an attempt to appeal against a finding of fact which is made in sufficiently clear terms for Mr Adams to know why, having won the case of unfair dismissal, he was not awarded any compensation. The appeal is therefore dismissed.