United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 291_95_1412

Appeal No. EAT/291/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14 December 1995

HIS HONOUR JUDGE H J BYRT QC

MR L D COWAN

MR P DAWSON OBE

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THE POST OFFICE          APPELLANT

MR P A TOWNEND          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR DAVID BEAN

(of Counsel)

The Solicitor's Office

The Post Office

Impact House

2 Edridge Road

Croydon CR9 1PJ

For the Respondent MR CHARLES CIUMEI

(of Counsel)

Messrs Harold Benjamin & Collins

Solicitors

Mill House

67-71 Lowlands Road

Harrow, Middx. HA1 3EQ


 


JUDGE BYRT QC: This is an appeal from the decision of the London (North) Industrial Tribunal which was promulgated on 7 February 1995 when they unanimously held that the Applicant, now the Respondent, had been unfairly dismissed.

The facts are shortly as follows: the Respondent, a Mr Townend, had been employed by the Post Office since April 1984 and he was so employed until he was summarily dismissed on 9 April 1993 for the alleged theft of a parcel.

He had been employed since 1991 at the Respondent's East London Distribution Centre. On 4 March 1993 another sorting office, in the Middlesex area, reported to the Respondent's investigation department that a parcel had been over-labelled and a new address printed on top. The parcel consisted of a coloured television set which had been despatched from Manchester. It had arrived on 23 February at the distribution centre where and at a time when Mr Townend was on duty and it was admitted that he could have had access to the trailer in which it arrived. The address on the parcel was that of a friend of Mr Townend. It may be he had not seen him recently but, nonetheless, he was someone with whom he was acquainted.

The parcel was followed as it was delivered to its addressee. The Police were cooperating with the Post Office investigators and when it was accepted by the addressee, he was promptly arrested by the Police and charged with handling stolen goods. It is right to say that that charge was not ultimately proceeded with.

The investigators then interviewed Mr Townend on 10 March. As a result of their enquiries, they came to the conclusion that there was a reasonably strong case to be made against him for his participation in the theft or the handling of this particular parcel. During the interview procedures Mr Townend's flat was searched. There they discovered two pieces of suggestive evidence. They found some labels which they claimed were identical to the label that had been used to over-label the parcel, and a box of matches which recorded the wedding in the previous September of the recipient of the parcel.

In any event, on the strength of that investigation, they wrote out a report which recommended that disciplinary proceedings be begun. On 12 March the Post Office offered Mr Townend a disciplinary interview in which he could put forward his case. That interview was conducted on 6 April by Mr Townsend (not to be confused with the Respondent). The Tribunal came to the conclusion that Mr Townsend had been so impressed by the investigator's report that by the time he commenced his interview he was biased against Mr Townend. Further, the Tribunal were critical of the investigation. They took the view that there was further checking on the complicity of Mr Townend which could have been carried out by the investigators.

In any event, the result of the disciplinary interview was that Mr Townend was dismissed on 9 April 1993 and he appealed, as was his right. The appeal came up before a senior member of management, Mr Barnett, and he conducted the appeal by way of a review of the evidence and procedure before the disciplinary hearing. At the end of that enquiry, the appeal was dismissed.

As I have already indicated, the Industrial Tribunal were not impressed by the way in which the Post Office had carried out their enquiries, nor were they impressed by the disciplinary procedures which had been followed. They came to certain conclusions which are now the subject matter of criticism by the Appellants who say that the Tribunal misdirects themselves on the burden of proof. The passages they criticize are contained in paragraphs 13 and 14 of their reasons and as follows: the first passage criticized says:

"The Post Office does not have to satisfy us as to the likelihood that the offence was committed only that it had acted reasonably in drawing its conclusion of fact to this effect."

In other words, they are saying there that it was for the Post Office to satisfy the Industrial Tribunal about the reasonableness of their belief that the offence had been committed. In the same paragraph, there was a further passage which says:

"The employer is required having established the reason for dismissal, to establish that he acted reasonably in forming his view of the facts, and had reasonable grounds for his belief that his employee had committed the act of misconduct."

A little later, in the same paragraph:

"The Post office has not shown that it had enough evidence to convince us that it had reasonable grounds for believing in the guilt of the Applicant from the information available to it at the moment of dismissal."

Lastly, at the outset of paragraph 14, they said:

"Further we find that there is an onus on the employer to show that not only was a reasonable and sufficient investigation carried out but also that it operated a fair process in dismissing."

In those passages the Industrial Tribunal gave their minds to those matters which have to be considered under section 57(3) and they came to those conclusions. As a result of it, they found that the Applicant, Mr Townend, had been unfairly dismissed.

Mr Bean, who has argued this case on behalf of the Appellants, makes a short submission. He says that from start to finish when considering those matters which arise under section 57(3), the Industrial Tribunal misdirected themselves on the burden of proof. He drew our attention to the fact that the Employment Act 1980 contained a statutory provision which relieved the employer of burden of proving any of the matters under that particular sub-section. He cited to us the case of the Post Office (Counters) Ltd v Heavey [1990] ICR 1 which refers to that new provision. The conclusion Mr Bean came to was that because they set themselves the wrong test for the burden of proof that error vitiated all their findings of fact. Having set themselves the wrong test, they may have come to the wrong conclusion about any one of those findings.

Mr Ciumei has argued this case most conscientiously on behalf of the Respondent. He says that the passages Mr Bean criticises do not really mean what they say and he makes reference to the passages before and after to illustrate his point in that respect. Second, he says you have is to take the reasons of the Tribunal as a whole, and that when that is done, it can be seen that the Tribunal did not apply the wrong test as to the burden of proof at all. Further, he says that whatever criticism Mr Bean might make of the reasons of the Industrial Tribunal, their findings of fact were so strong in favour of his client that judging the matter by the niceties of the burden of proof does not do justice to the case. The burden of proof only becomes important, he says, where a Tribunal has difficulty in deciding which of two accounts given in evidence before it, it is inclined to accept. In such a situation, a tribunal or Court may have to decide the matter on the basis of the burden of proof. In this particular instance, he says, there were no such marginal findings. Most of the findings were in support of his client and, in consequence, the issues which arise on an argument about the burden of proof, do not arise.

The issue for this Tribunal we see as being simple. It is plain that the Industrial Tribunal did wrongly apply the burden of proof and we think that we must accept the submissions of Mr Bean. As a result of applying the wrong burden of proof test when answering the questions to be determined under s.57(3), the Tribunal may have come to an invalid conclusion in respect of one or more aspects by reason of that fault or failure in their direction, and that would be critical. We have been urged by Mr Ciumei that Mr Bean has merely picked isolated sentences out of the reasons to substantiate his criticism and, on occasion, it has only been part of a sentence and he says that this presents an unfair picture. We cannot accept that submission. We think that the error which has occurred in this case is fundamental and, as I say, may have resulted in a wholly wrong decision. That being the case, we feel that we have no choice but to allow this appeal. The question then is to decide what to do.

Mr Ciumei, again, has addressed us on this. He is mindful of the delays that have occurred since his client was dismissed in April 1993. By reason of certain disabilities, referred to in the Tribunal's reasons, he has been unable to find alternative employment. He is also mindful of the fact that if this matter were to be remitted to the Industrial Tribunal, it would involve his client again in considerable cost and expense. For those reasons, he invites us to substitute our own findings for those of the Industrial Tribunal, saying that Mr Bean has not challenged any of the findings of fact in themselves. We are quite certain that this is not something we can do in this case. The findings of fact will have to be reconsidered again with the correct burden of proof applied. This can only be done properly after the hearing of evidence and that is something we are not in a position to do.

In consequence, we direct that this case be remitted to an Industrial Tribunal to hear the case afresh. The question is then as to whether it is to the same Tribunal or a differently constituted Tribunal. It is our view that if justice is to be done to the satisfaction of both parties, the case must be remitted to a differently constituted Tribunal.

Mr Ciumei has stressed the disadvantages of this course but in actual fact the delays which may be caused to his client may be not as serious as he anticipates. The Tribunal, which this matter originally, had in any event stopped short of coming to any findings related to compensation and it is obviously right that the new Tribunal should be the Tribunal to decide the issue of the fairness or otherwise of the dismissal and deal with the question of compensation. That is the direction of this Tribunal.