United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 698_95_1810

Appeal No. EAT/698/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18th October 1995

THE HONOURABLE MR JUSTICE MAURICE KAY

MISS A MADDOCKS OBE

MR T C THOMAS CBE

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MR R TAYLOR          APPELLANT

CORNWALL COUNTY COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR R TAYLOR

(In person)


 


MR JUSTICE MAURICE KAY: This is a preliminary hearing of the appeal of Mr Robert Taylor against a decision of the Industrial Tribunal sitting at Truro on 9th May 1995. That Tribunal dismissed his application alleging unfair dismissal.

Before February 1994, Mr Taylor had been employed at Tremorvah in Cornwall as an employee of the Cornwall County Council Social Services Department. His job was that of production manager.

In February 1994 he was a subject of a number allegations which, if true, would have been allegations of misconduct in relation to the carrying out of his tasks, and in relation to his employers property in various ways. We do not need to go through the details. The allegations are set out in paragraphs 9 to 12 inclusive of the Industrial Tribunal's decision.

There was on the Industrial Tribunal's finding a lengthy investigative process. Mr Taylor was interviewed on two occasions and, in due course, a disciplinary hearing was held. That was on 25th August 1994 and Mr Taylor was represented by his union official.

As a result of the disciplinary hearing, he was dismissed.

He appealed, and an appeal hearing took place on 28th November 1994. His appeal was unsuccessful. Thereafter his case came before the Industrial Tribunal as we have indicated.

Whilst all this was going on, Mr Taylor was also the subject of a police investigation, and in due course he was charged and prosecuted. However, on 9th June 1995, at Truro Crown Court, the prosecution offered no evidence against him in respect of these allegations; the judge ordered that `not guilty' verdicts be recorded: and a defendants cost order was made in his favour.

The Industrial Tribunal which heard the case before the hearing in the Crown Court, had to examine the procedures which were followed, and which culminated in Mr Taylor's dismissal. The Tribunal correctly stated that their concern was to apply Section 57(1), (2), and (3) of the 1978 Act, and also the principles laid down in British Homes Stores Limited v Burchell [1980] ICR 303. The Tribunal in paragraph 13 of its decision correctly stated the threefold test, established by Burchell and other cases. In addressing us, Mr Taylor has correctly accepted that the real point he is trying to make, is that the third Burchell test was not satisfied in the Industrial Tribunal. The Burchell test requires a belief of misconduct on the part of the employer, that the belief is reasonable, and thirdly, that the belief is reasonably held after a reasonable investigation. Mr Taylor accepts that it is the reasonableness or otherwise of the investigation which he seeks to challenge here and in respect of which he invites us to say that there is a point of law in connection with the Industrial Tribunal's findings.

So far as the reasonableness of the investigation is concerned, the Industrial Tribunal's view of the original disciplinary hearing is set out in paragraph 7 of its decision. It records amongst other things, that he was given full opportunity during the two day hearing to challenge the allegations, to call witnesses and to ask questions and to the extent that he required to do so, he was free to do so and did so.

The Tribunal then considered the disciplinary appeal panel and found no fault with it.

When finally applying the third limb of the Burchell test, in paragraph 13 of their decision, the Tribunal concluded:

"... it is clear from the evidence that a very substantial and thorough investigation was carried out. It commenced on 1 February 1994; it continued until 13 September 1994 and there is an indication that it may still be continuing. In that period not only was the applicant interviewed on two occasions; but he went through a disciplinary hearings and an appeal hearing and it is clear also from the evidence that a number of other people were involved and statements were taken from them in respect of the matters that are produced in evidence today."

In the course of the hearing before this Tribunal, Mr Taylor has referred to pages 9 and 10 of our bundle, which are two pages of transcript from the original disciplinary hearing. He has told us that those two pages are two pages of a 70 page transcript that covered verbatim the entirety of that hearing. We infer that there was a similar document arising out of the appeal hearing. All this material, we are told, was before the Industrial Tribunal. It is clear from the passages which we have quoted that the Industrial Tribunal was entirely satisfied with the reasonableness of the enquiry that had taken place. We can understand that Mr Taylor feels some frustration in these matters, because there are always some difficulties arising when there are concurrent proceedings of a disciplinary or industrial tribunal kind on the one hand, and in the criminal courts on the other hand. Nevertheless, that is simply an occurance that happens in many cases. The question is whether the Tribunal erred in law, when it came to the conclusion that there had been a reasonable investigation. We have considered the matter and it seems to us, as a matter of law, that it cannot possibly be said that they did so err. They considered the proceedings that had been held with considerable care, and came to a clear conclusion that it was a reasonable investigation. They were not concerned to establish the truth or untruth of the original allegations and nor are we.

In all the circumstances, we are satisfied that there is no error of law in the Tribunal's decision and there is no prospect of this appeal succeeding. We therefore dismiss it at this stage.