United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 938_93_1601

Appeal No. EAT/938/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16 January 1995

Before

HIS HONOUR JUDGE D M LEVY QC

MR J D DALY

MR J C RAMSAY

---

STAKIS PLC          APPELLANTS

MR J TALAL          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellants MR R SCUPLAK

Personnel Consultant

IRPC Group Limited

Stockwell House

New Buildings

Hinckley

Leicestershire

LE10 1HW

For the Respondent MR J DEE

(Of Counsel)

Messrs Clayton

Mott & Son

Solicitors

Milton Chambers

19 Milton Street

Nottingham

NG1 3EU


 


JUDGE LEVY QC: This case raises a short but not unimportant point on the application of British Homes Stores Ltd v Burchell [1978] IRLR 379, in the context of a disciplinary hearing by the employer investigating alleged misconduct by an employee. We have not during the course of the hearing been referred to the case itself, but we all have it very much in mind.

Briefly, the facts which lead to the appeal are as follows. Mr J. Talal was at all the material times a waiter at a casino of Stakis Plc, the Appellant here ("the Company").

On 31 May 1993, Miss Jedeloo, a waitress at the casino, complained that two casino chips had gone missing from her handbag. After a preliminary investigation, Mr Blunt, the general manager of the casino at the time, suspended Mr Talal and arranged for a security officer, a Mr Bolland, to make a formal investigation. Mr Bolland subsequently made that investigation and took statements from Miss Jedeloo, Mr Marino, a security officer and Mrs Lorna Bradley, a cashier.

Both Mr Marino's and Mrs Bradley's statements said that Mr Talal had cashed in chips that evening at Mrs Bradley's desk. A disciplinary hearing was held by Mr Blunt on 7 June 1993. He had with him at that hearing the statements of Miss Jedeloo, Mr Marino and Mrs Bradley and he heard evidence from Mr Talal, who denied taking the chips. Faced with the written evidence Mr Blunt dismissed him.

Mr Talal made a complaint to the Industrial Tribunal on 16 June 1993. A Notice of Appearance was entered by the Company which was received on 14 July 1993. There was a hearing before the Nottingham Industrial Tribunal on 16 September 1993 when Mr Talal appeared in person and Mr Scuplak, who appeared before us today, appeared for the Company.

The unanimous decision of the Tribunal was that the Applicant was unfairly dismissed. It is against that decision that a Notice of Appeal was lodged on 5 November 1993. The Respondent's answer was received dated 7 December 1993. Today, Mr Scuplak has appeared for the Appellant and Mr Dee for the Respondent.

The two central parts of the Full Reasons of the Tribunal read:

"6 It appears there may well have been two separate occasions when the applicant went to the cash desk. Nobody seems to have made any investigations as to the difference in those statements as to when this actually happened. We hear from Anita Jedeloo that on one occasion when she was at the cash desk, she was standing next to the applicant, and on that occasion he handed over cash and no chips. The regional security officer took those statements from the cashier and the security officer and gave them to Mr Blunt who was the manager of the casino.

7. on the 7 June he called Mr Talal into his office and asked him if he wanted a witness. He said that because of Mr Talal's poor communication he then asked him again. We must say that we found no evidence this morning of poor communication, and we were able to understand what Mr Talal said, particularly when he spoke more slowly. He then asked him a third time if he wanted a witness. Mr Talal said that he wanted Anita Jedeloo and Mr Blunt said that would not be appropriate in view of the fact that she was involved in the matter. We do not think that is particularly unreasonable but we do think in view of the seriousness of this particular charge and the likely consequences of this particular charge that the employee Mr Talal should have been represented in accordance with the company's disciplinary procedure.

8. What the Tribunal has to decide is did the company make the investigations in a reasonable manner. The man if found guilty was going to lose his job and his reputation [emphasis added on the next sentence]. No evidence was taken directly by Mr Blunt from Mr Marino or from the cashier and in view of the disparity between the times of the visits to the casino bank, we believe that further investigation should have been made. If Mrs Jedeloo, who had lost the chips had been interviewed she would have given evidence that Mr Talal did not hand in the two £5 chips when she stood next to him at the cash desk. We do not think that the procedure was carried out thoroughly and that proper enquiries were carried out in a proper manner. Therefore our conclusion is that because of a failure of a proper procedure to be carried out that the applicant was unfairly dismissed".

From those reasons, Mr Scuplak complains particularly of the fact that the Tribunal did not hear any argument as to the weight to be placed on evidence given to the Tribunal by

Mrs Jedeloo where it included material which was not in her statement. He submits if the Tribunal intended to attach weight to that evidence, it should have so indicated to the parties and their advisers, so that appropriate submissions could be made as they thought appropriate. However we are convinced that the real reason that the Tribunal found Mr Talal's dismissal unfair is that they were dissatisfied that Mr Blunt had decided to hold the disciplinary hearing on three statements, the truth of the contents of which he had not himself verified. At the hearing, he accepted what was in those statements against the oral evidence of Mr Talal who said he had not cashed the chips.

We think that a Tribunal, who has seen the witnesses and heard the witnesses, is in a much better position than us to decide whether there has been a proper procedure or not. The fact that Mr Blunt did dismiss Mr Talal following the hearing which we have described is sufficient to justify the Industrial Tribunal coming to the decision it did. An Industrial Tribunal has to examine the quality of the material which the employer had at the disciplinary hearing to see whether it was the sort of material which objectively considered would lead it to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion beyond reasonable doubt. Too strict an obligation must not be placed on an employer in this context. He has not got to be satisfied of the guilt of the employee to the criminal standard that is beyond reasonable doubt. Here we have no doubt that if the proper test had been applied on the evidence before him, Mr Blunt might have reached a different decision. We are satisfied therefore that the Tribunal was entitled to reach the decision it did and it is a decision with which we should not interfere.

One other matter raised in argument during this appeal calls for mention. In paragraph 7 of the Reasons for the Industrial Tribunal's decision, Mr Blunt is recorded as asking Mr Talal three times whether he wanted a witness. Those were the words he used when he gave his evidence to the Tribunal, and in the letter which he wrote to Mr Talal on 11 June 1993, the first paragraph of which reads:

"I refer to your disciplinary interview on Monday 7th June 1993 with Mr A Harrison in attendance for the Company. The option of a witness on your behalf was declined".

We have been referred to the handbook which is appropriate to the Company's disciplinary hearings. This makes it clear that a person who is a subject of a disciplinary hearing is entitled to have another employee present when the hearing is taking place - no doubt it is thought desirable to permit someone independent to be present so that they can see that the hearing is conducted fairly. It seems to us to be inappropriate for the employer to use the word "witness" to refer to somebody who is, in fact, there for that purpose as opposed to someone attending the disciplinary hearing to give evidence which may assist the subject of that hearing. The ambiguity in the word as used by Mr Blunt gave rise to some confusion during the hearing before us. It became clear that Mr Blunt cautioned against Miss Jedeloo attending the disciplinary hearing as an observer. Though it might have been helpful if, on the facts of this case, Miss Jedeloo had in fact given evidence before the disciplinary hearing, nothing, at this stage, turns on that.

In the circumstances, we dismiss this appeal.