United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 334_95_2010

Appeal No. EAT/334/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20th October 1995

HIS HONOUR JUDGE J HICKS Q.C.

MR R H PHIPPS

MR N D WILLIS

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MR B GUNASENA          APPELLANT

UNITED BISCUITS (UK) LTD T/A UB DISTRIBUTION SERVICES          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MS J BOND

(of Counsel)

Messrs Ratnam & Co

Solicitors

47 Moat Drive

Harrow

Middlesex

HA1 4RY


 


JUDGE HICKS Q.C.: The appellant, Mr Gunasena, had been employed by the respondents United Biscuits (UK) Ltd for 12 or 13 years as a cleaner at their warehouse at Park Royal London when he was dismissed by them. The work at the warehouse included the storage and distribution of edible food stuffs. There was a policy on the part of the respondents that staff should not eat food on the premises or have the company's food products in their possession except in the canteen provided for that purpose, where company products were available for consumption.

The respondents, as a result of a search on 25th May 1993, investigated the appellant's position and there was then an enquiry and a further investigation and a disciplinary hearing as a result of which he was dismissed. On that date, 25th May 1993, there was (in accordance presumably with a settled procedure) an appeal, at which Mr Gunasena was represented by a barrister and had the assistance of an interpreter. There was then a further appeal stage and again Mr Gunasena had the services of a barrister and interpreter, and the result of those further appeals was that his dismissal was confirmed.

He applied to the Industrial Tribunal for compensation on the basis that that was an unfair dismissal. The Industrial Tribunal found that the reason for the dismissal was misconduct; and that that was a reason falling within the provisions of Section 57(2) of the Employment Protection (Consolidation) Act 1978. They then considered whether the respondent had established a genuine belief on reasonable grounds after a proper investigation that the employee's conduct justified dismissal, and that is clearly an accurate and compendious statement of the three-stage test commonly called by the name of the case of British Home Stores Limited v Burchell, and the Tribunal found that there was a proper investigation, that the respondent's belief as to the applicant's misconduct was bona fide, and that the decision to dismiss was within the range of responses open to the reasonable employer.

The Notice of Appeal to this Tribunal relies on two grounds. The first is abandoned and so we need say no more about it. The second is that the Tribunal erred in law in concluding, on the findings of fact, that the respondents reached a bona fide belief on reasonable grounds that the applicant was guilty of gross misconduct and furthermore that the Tribunal erred in law in finding on the balance of probabilities that a decision to dismiss the applicant was within the range of responses open to a reasonable employer. It may be implicit in that ground, and has certainly been made explicit in the course of Miss Bond's submissions to us, that the error of law alleged is perversity, not misdirection, and we therefore have to consider whether the findings of fact of the Industrial Tribunal were ones which no reasonable tribunal could have reached or, as it is variously put in other cases, that they were "irrational" or "bizarre" - the number of ways in which the test has been described is numerous, and we need not repeat them all, but we are familiar with them and that is the test we apply.

It falls into two parts. First, there is the alleged perversity in finding that the employers held their belief of misconduct on reasonable grounds. Miss Bond submitted that it was perverse for the Tribunal to find that the respondents reasonably rejected Mr Gunasena's explanation of the food found on the search, first in his pocket and later elsewhere, his explanation being that his wife had bought this food (which consisted of cakes) in a shop. The respondents disbelieved that explanation because the date on the packet of cakes was such as to indicate that it could not in the ordinary course of events have been purchased in a shop.

What we have to consider is whether it is arguable that it is perverse for the Industrial Tribunal to have accepted that that was a reasonable and bona fide belief by the employers, and a proper and reasonable ground on which the employers, holding that belief, could reject the applicant's explanation. It seems to us quite impossible to hold that that was a perverse finding by the Industrial Tribunal. The question of the relevance of the date was quite apparent, and must have been quite apparent in the course of the Industrial Tribunal hearing, at which Mr Gunasena was represented by a barrister. There is no suggestion, as we understand it, that Mr Gunasena called any evidence that such dated cakes were available for sale in the shops at the time. The employers' witnesses, as is apparent from the Tribunal's findings of fact, gave evidence about the relevance in their mind, and in their experience of the workings of the warehouse, of the dates on the cakes, and the Tribunal came to its finding on that evidence. We see no possible ground on which that finding can be said to have been perverse.

The second ground of perversity which Miss Bond put forward was that it was perverse for the Tribunal to prefer, as they say they did, the evidence of the respondents' witnesses where there was conflict in view of what she says - and we have not of course seen the notes of evidence, or the written statements - are inconsistencies or contradictions between the evidence of different respondents' witnesses or even perhaps between different parts of the evidence of a particular witness. But all that was entirely a matter for the Industrial Tribunal. The most fundamental part of the duty of a tribunal of fact is to decide between conflicts of evidence, whether those conflicts occur between the two sides or within the evidence of one side, and there is no possible way in which we can find that it was perverse of the Industrial Tribunal to reach the preference which they expressed for the respondents' witnesses or, following on from that, to make the findings of fact which they did on the basis of that evidence.

Thirdly, Miss Bond submits that it was perverse of the Industrial Tribunal to disregard evidence that there had been complaints by the appellant of various matters just before, as we understand it, the series of events in which he was subject to disciplinary enquiries, because the final one was in fact the third of three which are mentioned in the Industrial Tribunal's reasons, and also evidence, she submits, of bad relations with a particular member of the management, a Mr Hall. Again, it would simply be quite wrong for us to assume that the Industrial Tribunal, in so far as those matters were ventilated before them, disregarded them. If they did not consider them important (and they presumably did not, because they are not referred to in their reasons) that was entirely a matter for them and perfectly understandably so in view of the fact that the basic question was whether the employers had acted reasonably in dismissing for a quite specific act of alleged misconduct, and that was the primary ground of investigation.

That deals with the matters advanced under the first part of Ground 2 of the Notice of Appeal, the alleged perversity in finding that the respondents reached a bona fide belief on reasonable grounds.

As to the second limb, that the Tribunal was perverse in finding that the decision to dismiss was within the range of responses open to a reasonable employer, it was submitted that that was a perverse finding in view of the fact that the employee had been employed for 13 years by the employers. The matter of his relations with Mr Hall was also mentioned again in that connection. But the situation before the Industrial Tribunal here was that, as they found, the employers had a very clear policy, very clearly conveyed to the staff including Mr Gunasena, that it would be regarded as gross misconduct resulting in summary dismissal to be found consuming or in possession of company products anywhere on the site except in the canteen. It is quite impossible for us to say that the Industrial Tribunal was perverse in accepting, as they implicitly did, that that was a reasonable policy for the company to pursue. It is quite clear that although the notices distributed by the company said that an offence of this kind would result in summary dismissal that was not a notice which the company regarded as exempting from carrying out proper disciplinary enquiries and a proper consideration of the course to be followed in a specific case. There is no perversity whatever, in our view, in the Tribunal's finding that in those circumstances dismissal was within the range of reasonable responses open to a reasonable employer. The Tribunal clearly had in mind, because it states, the period of the employee's service.

It was then submitted that the employer should have shown in its decision letters or dismissal letter, and whatever communications followed the appeals, that it, the employer, had taken into account these matters of long service and so on. But so far as that is put forward as a proposition of law, it is quite clearly wrong. In our understanding it is not required of employers, when carrying out disciplinary procedures, to give reasoned judgments of the sort given by courts of law. So far as it is put forward as a proposition that by failing to do so they were in breach of their own published disciplinary code the fact is that, as Miss Bond accepts, that was never put to the Industrial Tribunal, and the Industrial Tribunal cannot possibly therefore be in error in not dealing with it.

We therefore see no arguable ground on which this appeal could succeed or proceed any further. We accordingly dismiss it.