United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 784_95_1411

Appeal No. EAT/784/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14th November 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MS S R CORBY

MISS A MACKIE OBE

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WILLIAM LAMB FOOTWEAR LIMITED          APPELLANTS

T BLACK          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR G EXALL

(of Counsel)

Messrs Nelson & Co

Solicitors

St Andrew's House

St Andrew's Street

LEEDS

LS3 1LF


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal against the unanimous decision of the Tribunal held at Leeds on 17th May 1995. In the extended reasons sent to the parties on 21st June 1995, the Tribunal explained why they had reached the decision that Mr Terence Black had been unfairly dismissed by his former employers William Lamb Footwear Limited. They went on to award him compensation of £7,925.00, and made various ancillary directions in relation to the prescribed element and the application of the recoupment provisions.

William Lamb Footwear appealed against the decision by a Notice of Appeal served on 21st July 1995 contending that there were questions of law raised by the extended reasons for the decision against them.

The purpose of the preliminary hearing is to determine whether the grounds set out in the Notice of Appeal raise arguable questions of law for consideration at a full hearing.

Mr Exall has argued the case on behalf of William Lamb Footwear. He sought to persuade us that the Tribunal misdirected themselves on the law.

To see whether his submissions are correct or not, it is necessary to look at the findings of fact first, and then consider whether the Tribunal properly interpreted and applied the law to reach the conclusion of unfair dismissal.

Mr Black was employed by as a back part moulding machine operation by the company from February 1992 until he was dismissed for alleged misconduct on 22nd July 1994. The company carry on business of manufacturing all kinds of footwear. They had about 150 employees at the time when Mr Black was dismissed.

The events leading up to his dismissal were that, after Christmas 1993/1994 the company was faced with pilfering of footwear from the factory. In the course of enquiries, Mr Black's name came up. In the last week of April 1994 the amount of pilfering increased. According to the factory manager, Mr Glynn, they were losing shoes and footwear at the rate of 4 or 5 pairs a night. A check was carried out each morning to substantiate that shoes were being stolen.

On 3rd May 1994 Mr Glynn had an interview with a female employee who had requested to see him. The shop steward was present. She told him that she had seen Mr Black coming over to the shoe rack and she had heard from her hairdresser that he had bought some shoes from Mr Black for £5.00, which was much less than the normal selling price. Mr Glynn spoke to the hairdresser. He did not want to be involved, but he allowed Mr Glynn to go to his house and look at the shoes, and Mr Glynn was satisfied that they were shoes made by the company. At the house Mr Black's name was mentioned. Mr Glynn returned to the factory, saw Mr Black and another gentleman, and told them both that Mr Black's name had been mentioned by two people, one person in the factory and another person outside the factory. Mr Black denied any involvement in anything to do with the shoes seen at the hairdresser's house. He denied being involved and so did the other gentleman. Mr Glynn told Mr Black that he would watch the situation and discuss it with the Union. Nothing further happened until the pilfering started again in about mid-June.

There was an external monitoring system operated by the company. That did not show anyone coming in from outside without authority to the factory. Mr Glynn was aware that Mr Black was stopping over late to do work in the evenings. As result of that and the fact that pilfering started again, he decided to see Mr Black on 21st July 1994. On that date Mr Glynn was called into the Finance Director's office and was shown a letter, unsigned and undated, and which said:

"I am writing as a former employee to inform you that one of your workers is selling mens boots and shoes from the back of a van openly admitting that he had stolen them from his work. I know this man is Terry Black ..."

Mr Glynn decided to have a meeting. That took place on 21st July 1994. A union representative was present. Mr Black was suspended, and was told that there would be a disciplinary meeting the next day.

The next day the disciplinary meeting took place and lasted 15 minutes. It was conducted by Mr Glynn. The union representative and branch secretary were present. After the meeting Mr Glynn had discussions with the union representatives for about an 1¹/₂ to 2 hours. Mr Glynn then decided to dismiss Mr Black and wrote a letter of dismissal on the same day. There was an unsuccessful appeal before the Finance Director, Mr Radcliffe, at which the union representatives were present.

The Tribunal had to decide on those facts whether Mr Black had been fairly or unfairly dismissed. In paragraph 6 of the decision, they, as Mr Exall properly accepted, correctly summarised the guidelines in the case of British Home Stores v Burchell relating to dismissal for misconduct. The Tribunal concluded that the dismissal was unfair and their reasons for that conclusion were stated in paragraph 7.

"7. We do not dispute that the respondents had a belief and genuine belief that the applicant was responsible for these thefts. The question for the tribunal is - were there reasonable grounds for that belief based upon a proper enquiry. After what the former employee had told the respondents the applicant was seen and told that he would be watched carefully. Further pilfering took place. A letter was handed to Mr Glynn from the finance director, from a former employee referring to shoes being sold from the back of a van and that the person selling them was Terry Black. The letter was not signed. Where matters of theft and dishonesty are concerned it is vitally important that a proper investigation and a proper procedure is carried out. We have come to the conclusion in this case that there was not sufficient evidence upon which a reasonable employer could come to that conclusion that the applicant was the man who was responsible for the theft of the footwear. We do not find that it was within the band of reasonable responses to come to that conclusion on the basis of the evidence which was before the employers at the time when they took the decision to dismiss and on the evidence that has been produced to this tribunal. We have therefore to say that we find that the dismissal was unfair."

They went on to assess compensation.

What is legally wrong with that decision?

Mr Exall submitted that there was no criticism by the Tribunal of the procedures which had been followed. What other steps, he asked, could reasonably be expected to be taken by the company? He said that what the Tribunal had in fact done was to substitute their own decision for that of the employer, and had failed to take into account all the circumstances of the case. In particular, he reminded us that the relevant circumstances under Section 57(3) of the 1978 Act include having regard not only to the reason shown by the employer but also to the size and administrative resources of the undertaking. In failing to have regard to the size and administrative resources of this employer, the Tribunal had failed to consider what other investigations could or should have been made.

Mr Exall also submitted that the Tribunal had erred in law in coming to their conclusion by having what appears to be excessive regard to the fact that the letter implicating Mr Black was an anonymous letter. He submitted that the kernel of the Tribunal's decision appeared to be that, because the company had relied upon an anonymous letter, that was not sufficient evidence on which a decision to dismiss could be made. He repeated that there had been no criticism of the procedure. The criticism appeared to be that the process had been begun by an anonymous letter. He submitted that for all these reasons the Tribunal had failed to direct themselves correctly on the law.

As to the law, he referred to the well-known test in Burchell, and also to the decision of this Tribunal in Linfood Cash & Carry Ltd v Thompson [1989] IRLR 235 which showed that, in certain cases, it could be fair to dismiss someone on an anonymous complaint. The fact that the company was entitled to give the anonymous informant some evidential weight appeared to be a factor in the Linfood case which would justify a dismissal.

We have considered all these arguments. We have reached the conclusion that there is no arguable legal error in this decision. Although, in our view, paragraph 7 of the decision, particularly in the last three sentences, could have been more fully expressed, it is clear, reading the decision as a whole, that the Tribunal directed themselves to the right questions. They opened paragraph 7 by correctly identifying the question for their decision, that is were there reasonable grounds, based on a proper enquiry, for the genuine belief that Mr Black was responsible for these thefts? In those circumstances could a reasonable employer have come to the conclusion that he was responsible and ought to be dismissed? The Tribunal's conclusion on that was that a reasonable employer could not come to the conclusion that Mr Black was responsible and that the dismissal was unfair. That is essentially a question of fact on which the Tribunal have reached a conclusion. They have reached that conclusion of fact without any legal misdirection. We are unable to find a legal error in the way they have dealt with the matter.

As to Mr Exall's point about the size and administrative resources of the undertaking, we fail to see what impact that could have on the decision in this case. All we know about the size and administrative resources of the company is that it did employ about 150 people at the time of the dismissal. If, as the Tribunal found, that there were no reasonable grounds for dismissing Mr Black, it is difficult to see how the size and administrative resources of the company could effect that matter.

In our view, it is not really a matter of asking, as Mr Exall did, what further enquiries this company could have been expected to make? The real question is that it was not reasonable to impose the sanction of dismissal on Mr Black in the circumstances and on the material that they acted upon at the disciplinary hearing on 22nd July and in the appeal on 2nd August 1994. For all those reasons there is no point in this matter proceeding to a full hearing. The appeal is bound to be dismissed, because there is no error of law. We dismiss it now.