United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1026_94_2310

Appeal No. EAT/1026/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 October 1995

HIS HONOUR JUDGE J HULL QC

MR J H GALBRAITH CB

MR R SANDERSON OBE

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MR H G BOURNER          APPELLANT

HOUSE OF FRASER (STORES) LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant IN PERSON


 


JUDGE HULL QC: This is an appeal to us by Mr Harry Gordon Bourner against a decision of the Industrial Tribunal sitting at Ashford on 22 November 1993. That Tribunal was chaired by Mr Davies with two industrial members and they heard Mr Bourner's complaint which he had made to them on 25 January that he had been unfairly dismissed and wished to receive compensation for his unfair dismissal.

His employers were the other party, House of Fraser (Stores) Ltd. He had been employed near to their store in Maidstone, Kent, in the warehouse. His employment began on 6 February 1989 when he was employed as a van driver and porter. In November 1989 he became a warehouseman, and I think the best thing to do in dealing with the facts of the case is for me to refer to what the Tribunal said in their extended reasons which were sent to the parties on 22 December 1993.

Before I do that I should shortly explain (for the benefit of Mr Bourner and anybody else who is interested in our decision, including of course Mr Bourner's legal adviser) that this case is in our list under our Practice Direction for us to see whether we can discover, of course with Mr Bourner's assistance, any point of law on which an appeal can properly be brought to us from the decision of the Industrial Tribunal.

Under the Act of Parliament which created our jurisdiction, now Section 136 of the Employment Protection (Consolidation) Act 1978 Parliament has said expressly that we can only entertain points of law. If there is a point of law which we can find, which has been decided wrongly, or where the Tribunal have misdirected themselves, then we can and indeed should allow the appeal to proceed. But under our Practice Direction, if we cannot find any such point of law, then we are equally required to prevent the appeal proceeding by dismissing it here and now, thus avoiding all the expense and delay and trouble and so forth of preparing for a fully contested appeal.

This duty, which is laid on us, is particularly important when one notices the dates here. Mr Bourner's employment was ended (as he says) three years ago on 20 November 1992 and his Notice of Appeal was given on 27 December 1993, so that the case has been pending in our Tribunal now for the best part of two years. During that time Mr Bourner has been seeking legal aid. He has had the assistance of a Solicitor; he has been to see the Citizens Advice Bureau; he tells us his Solicitor has been of great assistance to him; he has made two applications for legal aid which have not been successful. He is still apparently persisting in that. All this time has elapsed and, of course, if the appeal does proceed, further time will be spent and further costs incurred.

Mr Bourner said that he felt unable to help when we asked him repeatedly whether he could point out to us any point of law which would appear to show that there was an error by the Industrial Tribunal. He explained to us that in matters of law, of course, he is not in any way skilled. He is not to be criticised for that but he seems to feel, in some way, that he is failing there. Of course, it is not in any way a failure for him not to understand the law, and it puts an even greater responsibility on us to see whether we can discover any point of law which can assist him.

I refer to the decision of the Industrial Tribunal. They say that it was very important in his work as a warehouseman for the employers to have proper documentation. They say:

"4 (6) On 10 July 1992 the applicant received a warning letter ... . Certain carpet remnants had gone missing and as a result of the disciplinary interview, the applicant admitted that he had been in contravention of the respondent's documentary procedures. The applicant did not appeal against the warning letter.

(7) On 28 October 1992 there was a delivery at the warehouse of nine television sets, nine video recorders and two hi-fi systems.

(8) At the beginning of November 1992, the Manager, Mr A J Meyern, discovered that one Sony hi-fi system and nine video recorders were missing and an enquiry was promptly started [they refer to the Manager's statement].

(9) A detailed investigation was instituted by Mr Todd, the Security Manager, who carried out various interviews, studied the documents and interviewed the relevant employees. The documents showed that the goods in question had been received into the warehouse, but there was no documentation evidencing the release of those goods from the warehouse. Further enquiries at the store revealed that no one at the store had any recollection of requesting such goods."

And they set out the record of the investigation.

"(11) There was a further interview conducted with the applicant by Mr M Davies on 16 November 1992 and the record of that interview is at [and they set out the pages where they read it].

(12) During the course of his questioning, the applicant admitted to the respondent that he had not completed the proper documentation in relation to the videos.

(13) On 17 November 1992 the applicant was arrested by the Police. He was subsequently released on bail. No criminal proceedings were taken against him.

(14) On 18 November 1992 the applicant was suspended from work on full pay ...

(15) On Friday 20 November 1992 the disciplinary meeting was held with the applicant by Mrs Henry [and there were others present]... . The applicant was invited to have a representative of his own present with him, but he declined the invitation. The meeting lasted for between 1 hour and 1½ hours. The circumstances of the lost goods were again explained to the applicant and the fact that the value of the loss was approximately £4,000. The applicant was reluctant to offer any excuses, except to say that he had been under pressure to release goods from the warehouse. It was noted that the applicant had admitted that he had not followed the proper company procedure in relation to the documentation.

(16) As a result of the disciplinary meeting, the applicant was dismissed for gross misconduct with effect from Friday 20 November 1992, and subsequently a letter was written to the applicant on 24 November confirming the decision [and then they set out a history of appeals] ... .

(17) In accordance with the company's procedure, the applicant appealed against the dismissal. The appeal was heard by Mrs V S Arrow on 29 January 1993 [it was dismissed] ..."

(18) The applicant made a further appeal under the company procedure. This was heard by Isabel McKenzie on 11 March 1993. The appeal was dismissed ... .

(19) There was a further appeal to Elaine Wolf, Head of Human Resources. This was again dismissed and the letter confirming was sent to the applicant on 28 April 1993 ... .

5 In his submissions ... on behalf of the respondent, [the employers] Mr Grundy submitted that the reason for dismissal was gross misconduct following the applicant's admission of a breach of company procedures. He pointed out that the applicant had had a previous written warning on a similar offence, and that the applicant's failure had resulted in a large loss to the respondent.".

So then they came to their findings. It was their duty, on these facts, as they found them, to reach findings first of all as to the cause of the dismissal; the law lays that on the employer, to show what the cause of dismissal is; and, if the employer was able to show the cause of dismissal, to say whether the employer had behaved fairly and reasonably in treating that as the cause for dismissal. They say this:

"6 We find that the applicant was dismissed on 20 November 1992 for allowing goods out of the warehouse where he worked without proper documentation authorising the release of such goods. The applicant had been previously warned in July 1992, some four months earlier, for an exactly similar breach of procedure."

They then say, quite rightly:

"8 ... we have to consider the fairness of the dismissal. ... We have to look at the situation as it was in November 1992 and in the light of the information known to the respondent at that time.

9 The applicant admitted a breach of procedure, for which he had been previously warned. We find that dismissal was an option which it was open to a reasonable employer to take in the circumstances.

10 We find that the respondent [the employer] acted reasonably. The dismissal was fair and accordingly this application is dismissed."

That was the decision of the Industrial Tribunal sent to the parties on 22 December 1993 and it is from that decision that Mr Bourner appeals, and he sets out in his appeal, and has set out to us today that the true reason for his dismissal was theft. He was being charged with the theft. Of course, the police have not proceeded with that.

If the Tribunal had found that that was the cause of dismissal, the result of the case would quite certainly have been very different, because the employers did not try to prove and certainly did not succeed in proving that Mr Bourner was guilty of theft, any more than the police had. But what he had done was admit to the disciplinary enquiry that in this important matter he had departed from the rules concerning documentation and what had happened, as a result of that, was that there was further difficulty over the theft by whoever the dishonest person was who had taken these goods. That was the conclusion of the Tribunal.

We can only consider questions of law and Mr Bourner has very frankly said he does not really feel able to help us about that, but he has said as follows, and this is the substance of it. He said many of these things more than once. He said "I was dismissed for theft. The decision is a load of rubbish. I need a Solicitor. It is simply not the truth" he says. He told us about his consultations with the Solicitor and the Citizens Advice Bureau; his attempts to get legal aid and how many of the people he has consulted have agreed with him.

He has told us how he was offered £1,000 three days before the hearing to settle the case. That is not surprising because, whatever view the employers took of the merits of their case, to defend a case like this would cost at least that in legal fees and probably a great deal more and so, of course, it would save them money if they could get rid of it and they are commercial people.

Mr Bourner tells us that he is not interested in money, it is the principle of the thing he is interested in. He knows he would win hands down if he had a Solicitor. It makes him very angry, he says, and he will keep on fighting. He does not think anybody in the position of his former employers should get away with this and he has said to us again that they sacked him for theft.

So we have the nature of Mr Bourner's complaint well in mind, but what we cannot find (any of us) having thought about it, is any point of law here. We have looked very carefully at the decision to see whether there is anything there which would allow the appeal to proceed.

Contrary to what Mr Bourner seems to think, we very frequently do find matters of law. Had we found any such ground here, it would have been our duty to allow the case to proceed to a full hearing. But having thought about it as carefully as we can (and bearing in mind all Mr Bourner said to us and some further documents which he showed to us about his further attempts to get legal aid) we simply cannot find any point of law here.

It appears to us that the Industrial Tribunal, which is given sole responsibility by Parliament for finding the facts, has done so without making any errors of law and certainly without any unreasonableness on their part. They had to choose, of course, which evidence to prefer and what to accept and what to reject and they have set out their findings perfectly clearly.

In those circumstances, the appeal will have to be dismissed today, for the short reason that we can find no point of law here. We say that with considerable sympathy for Mr Bourner in view of his frankness in explaining to us his difficulties in putting the matter to us, but we have done our best (as I say) without success, to find any such point of law, so that has to be that.