United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 918_93_2311

Appeal No. EAT/918/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 November 1995

Before

HIS HONOUR JUDGE H J BYRT QC

MRS J M MATTHIAS

MRS P TURNER OBE

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MR C J HATTON          APPELLANT

ROMFORD OFFICE & COMMERCIAL REMOVALS LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE BY OR

ON BEHALF OF THE

APPELLANT

For the Respondents MR F LARGE

Personnel Officer

PAS Management Services

59 Ardmore Lane

Buckhurst Hill

Essex

1G9 5SB


 


JUDGE BYRT QC: This is an appeal from a decision of the Industrial Tribunal sitting at London (North), handed down on 14 October 1993 in which they unanimously held that the Applicant (now the Appellant) had been fairly dismissed.

In considering this appeal, we have not been helped by the fact that unhappily the Appellant has been unable to attend himself or send a representative to argue his case.

The facts are that the Appellant was employed by the Respondents as a removals van driver. The Respondents run a business which employs something like 15 to 20 people and they have approximately 15 vans. In about May 1992, following one of the IRA bomb explosions in the City, the Respondents were able to purchase, as a damaged lot, something like 1,200 second-hand chairs. They were stored in a warehouse in Bow. On 21 July of that same year, the managing director, Mr McArdle, was able to sell some to a firm in Nottingham and prior to their despatch went to the warehouse to see the chairs and found something like 50 to 60 were missing.

On 23 July he reported the matter to the police and, at the same time as the police carried out their investigations, Mr McArdle carried out his. He got into a vehicle and drove around the neighbourhood, and discovered some of his chairs on sale at two other establishments. One was at a shop in Stratford owned by a man called Mr Andrews. He engaged Mr Andrews in discussion about the chairs. As a result Mr Andrews gave him a description of the van in which the chairs arrived and, indeed, the person who had been driving the van. Mr McArdle formed the view that that was an accurate description of the Appellant in this case and of a van belonging to his company.

He then went to a second shop called Right Price in Ilford. He found further chairs there and once more he was able to link the Appellant with the sale of those chairs to the shop. He then carried out enquiries amongst his own staff and the story that he was given there, was that the van had been loaded up with chairs from his warehouse on instructions by the Appellant, who thereafter drove off with the van so loaded.

Mr McArdle then tried to check the story out or find corroboration for his investigations by having a look at the Appellant's van and the tachograph inside it. The tachograph had disappeared. On the strength of what he was told and what he had been able to see for himself, Mr McArdle formed the suspicion that the Appellant was guilty of the theft of the chairs and accordingly suspended him. There is a dispute, as to whether he was suspended on pay or without pay. It seems clear that he was suspended without pay for a period of something like three months.

In the meantime, the police, having carried out their own investigations, arrested the Appellant and charged him. It is right to say that when the matter did come to court in January 1993 the charge, for one reason or another, was withdrawn. The explanation given before the Tribunal was that the prosecuting service was not ready to proceed with committal proceedings and the Magistrate dismissed the case.

So far as investigations within the company are concerned, Mr McArdle set up a disciplinary hearing for 15 September 1992, notified the Appellant of the date of that hearing and afforded him the opportunity of attending to put his side of the case. Unhappily, the Appellant did not attend and did not do so, on the strength of his Solicitor's advice. The advice given was that it was not politic or sensible for the Appellant to attend the disciplinary hearing pending the conclusion of the criminal proceedings. The same explanation was given as to why he should not attend the appeal the Appellant had a right to make to a higher authority within the company.

The Industrial Tribunal heard evidence from Mr McArdle. They also heard evidence from another employee of the company, a Mr Hovsego. The latter described how, on Friday, 18 July 1992, that is three days before Mr McArdle noticed the chairs missing, he had been employed on the Appellant's van together with two other employees. They had returned to the depot at 3 o'clock in the afternoon. The chairs, at that stage, were inside the van and the last he saw of the Appellant on that occasion was locking up the lorry. The evidence of Mr Hovsego was that, on the following Monday, the lorry was empty. The Appellant's evidence contradicted that of Mr Hovsego. He said that the van was empty when he had locked it up on the Friday.

Having heard the evidence and the arguments advanced by both parties the Tribunal applied the principles set out in the case of British Home Stores v Burchell. They found that the Respondents had carried out "a thorough investigation" and had acquainted the Appellant with that investigation. They were satisfied the Respondent had notified him the day of the disciplinary hearing. The Tribunal directed itself to the case of Harrison Shepherd v Courage Eastern Ltd [1982] IRLR 509, and accepted that the pending criminal proceedings was not a sufficient reason for the employer to suspend further investigation or disciplinary hearings. The employer had to do the best he could, in coming to a conclusion, on the basis of his own investigations, whether to dismiss or not.

The Tribunal found that the employer entertained a reasonable belief that the Appellant had committed theft, and further that dismissal was within the band of reasonable responses of a reasonable employer. They were satisfied that the investigative procedures were substantially fair and therefore, the Appellant's dismissal was fair.

The Appellant in his Notice of Appeal, raises a number of points. Essentially, they all come down to the same proposition, namely that the Industrial Tribunal came to a decision which no reasonable Tribunal could have come to. First of all, he says that they relied too heavily upon Mr McArdle's hearsay evidence. With regard to that point, one has to bear in mind that it was not the function of the Industrial Tribunal to decide whether the Appellant was guilty of theft or not. All they had to decide was whether the employer's belief that he had committed theft, was a reasonable belief. In order to determine that, they necessarily had to hear the evidence upon which the employer formed that belief, and a narrative which in part included hearsay evidence was in consequence inevitable. We do not see that this is a reason for indicting the Industrial Tribunal's approach in this matter.

It was said that the Chairman repeatedly interrupted the proceedings and on many occasions refused to hear the Appellant. The Appellant was unrepresented before the Industrial Tribunal and, as anybody who has experience of these matters will know, that causes considerable problems for the Tribunal. There has to be an orderly and structured hearing. This is something which sometimes is difficult for a lay litigant to understand and when, indeed, the Chairman of such a Tribunal requires or requests the lay litigant "to keep quiet" for the time being, it is very often seen by him as "shutting him up" and depriving him of the opportunity to have his say.

This is an allegation to which we have given considerable attention but having regard to what Mr Large, who has appeared on behalf of the Respondents before us today, has been able to tell us, we are satisfied that there was no irregularity before the Industrial Tribunal which could give grounds for vitiating those proceedings.

Then it was said that the Industrial Tribunal attached too much importance to the evidence advanced for the Respondents by Mr McArdle and Mr Hovsego. The weight the Industrial Tribunal attaches to any particular evidence called before it, is essentially a matter for them. They had the advantage of seeing the witnesses and of being able to judge their demeanour in a way that this Tribunal, an appellate tribunal, has no opportunity of doing. They preferred the evidence of Mr McArdle and of Mr Hovsego, in preference to that of the Appellant and we cannot see in the circumstances of this case that there is any ground for us to disturb such an assessment.

We are satisfied that the Industrial Tribunal, having noted that the Appellant had been arrested, charged and brought before a criminal court, kept the matter in proper perspective. They noted that the proceedings had been dismissed, and there is no evidence to suggest that the Industrial Tribunal thereafter attached any undue weight to those proceedings.

In those circumstances, we think that the Industrial Tribunal directed itself correctly on the law and considered the evidence before it and assessed that evidence in an accurate and proper way.

This appellate court has merely to ask itself whether the decision the Industrial Tribunal came to, on the overall assessment of the case, was one which a reasonable Tribunal could come to. We have to say that, in our view, the decision they made was reasonable, and so cannot be disturbed.

In all those circumstances we must dismiss this appeal. But, before finishing, there is one further matter about which we would like to say something. At the end of their extended reasons, the Chairman of the Industrial Tribunal said "in our view, this was the clearest case of theft". Having regard to what the Industrial Tribunal had to satisfy itself about, that was an irrelevant statement to make. Unhappily, it is just the sort of remark which is calculated to cause offence to an appellant. Such unnecessary remarks are best not said.

This appeal must be dismissed.