United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1215_95_1704

Appeal No. EAT/1215/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17th April 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

MISS A MADDOCKS OBE

MRS M E SUNDERLAND JP

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MR A SHEARMAN          APPELLANT

B.C.E. CELLULAR EXTRUSIONS LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR N WRAY

(of Counsel)

Messrs Sergeant & Collins

Solicitors

25 Oswald Road

Scunthorpe

South Humberside

DN15 7PS


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mr Andrew Shearman against the decision of the Industrial Tribunal held at Hull on 20th June and 27th July 1995.

As explained in the extended reasons notified to the parties on 29th September 1995, the tribunal unanimously decided that Mr Shearman had been fairly dismissed by his employer BCE Cellular Extrusions Ltd.

Mr Shearman, whose case had been considered with that of two others, Mr Showler and Mr Boulton, was dissatisfied with the result and he appealed by Notice of Appeal served on 9th November 1995.

The purpose of the preliminary hearing is to decide whether the Notice of Appeal contains grounds which raise a reasonably arguable point of law. This tribunal only has jurisdiction to hear appeals from decisions of Industrial Tribunals on questions of law. If there is no reasonably arguable question of law in the appeal, then there is no point in having a full hearing of it, and it will be dismissed.

On the hearing today, Mr Wray appeared Mr Shearman and argued that there were grounds of law for arguing the appeal. In examining those we must consider the findings of fact made by the tribunal, against which there is no appeal, and the reasoning that led the tribunal to dismiss the claim.

The findings of fact by the tribunal can be summarised as follows. Mr Shearman was employed from March 1989. His job was that of Shift Technical Supervisor at the employers premises at Skippingdale Industrial Park, Scunthorpe. At those premises the employers operated four shifts on a rotational basis working different hours. Mr Shearman was the Shift Supervisor for shift 2. Various shifts were worked on a four shift rota basis. The crucial shift to which the allegations that led to dismissal related, was the shift from 10 p.m. to 6 a.m., the night shift.

The events, which were the subject of evidence to the tribunal, were then summarised under paragraph 3 of the extended reasons. The tribunal heard evidence from the Financial Director and Managing Director of the company, as well as from Mr Shearman and the other two applicants, and Mr Marvell, a former employee and former colleague of the three applicants. The position taken by the employers was that they had dismissed Mr Shearman for gross misconduct.

Their case was that, as a result of information received by them, they initiated enquiries into suspected theft of materials found on the market in the Scunthorpe area other than through legitimate sources. During the course of the enquiries, those who worked on the four shifts were interviewed. The employer's case was that it became apparent that irregularities had occurred in relation to the shift on which Mr Shearman was the supervisor. They alleged that unauthorised vehicles belonging to third parties and employees were driven into the factory during the night shift, were loaded with the employer's products and allowed by Mr Shearman to leave. Those collections were unauthorised. The procedures for obtaining permission to remove goods had not been followed and Mr Shearman was observed to be supervising the unauthorised removal of products in an employee vehicle during normal working hours, as captured on a video set up on the premises. The explanations given to them in an interview conducted by them and at subsequent disciplinary hearing were not satisfactory. In view of the seriousness of the conduct suspected, Mr Shearman was summarily dismissed. There was an appeal hearing on 27th January 1995. Mr Shearman failed to give an adequate explanation for his conduct. The appeal was dismissed. That was the employer's case.

The tribunal in paragraph 3 of the decision set out in detail their findings of fact, and their criticisms of certain aspects of the employer's case. In particular they commented in paragraph 3(d):

"It would have been of more assistance to the Tribunal if the videos that were taken and which indeed were taken on the police equipment had been available. For some inexplicable reason they [the videos] have not been kept by the respondents and the police force and therefore were not available. That was a criticism that was being levied by the applicants against the respondents and was said to be in part a considerable weakness in the case of the respondents. The Tribunal note, however, that in reviewing all the evidence the facts that the videos were alleged to have shown were not in fact contested by the applicants, and indeed they confirmed the actual facts that it was said by the respondents the videos had shown, and therefore the Tribunal can only come to the conclusion that as the respondents were aware of the facts and had them subsequently confirmed by the applicants either at large or individually, they could only have obtained those facts from those videos, albeit that they were not available."

The tribunal went on to state further findings of facts. They said:

(e) One of the incidents which the videos showed, and indeed which in part the applicants supported, occurred on 8/9 November 1994 when Mr Boulton's car was seen to be driven into the premises, recorded on video, and it was shown that it was loaded with certain material and that Mr Shearman was involved in guiding the car out which was driven by Mr Boulton."

They referred to a further incident shown on video on 12th November 1994. That was a video shown to the tribunal, though it was not one that concerned Mr Shearman.

The tribunal's conclusions about the investigations were these:

(f) The investigation, therefore, which the respondents had carried out up to this point towards the middle/end of December 1994, being by way of video recording, enquiries through the police, information from the police and the private investigator reporting on surveillance that he had carried out, showed that there were various problems which the respondents decided they needed to investigate further by interviewing various members of staff. They decided that those interviews should at first be concentrated on Shift 2 of their employees."

The tribunal dealt with the evidence of the interviews that took place on 5th January 1995. The whole of Shift 2 were interviewed, including Mr Shearman. As a result of that interview Mr Shearman was suspended from his employment pending further disciplinary matters.

The tribunal said, that without going through the specific items alleged that were answered by each of Mr Shearman and Mr Boulton:

"The Tribunal note that they gave complete denials of their involvement. It is fair to say that they were not given details of the actual times and dates of the events that were being alleged against them, nor indeed were they shown the videos, although they were notified that videos existed. Nonetheless, they denied completely the events concerned."

As a result of those interviews, it became apparent that there were problems with other shifts and the tribunal dealt with those. The tribunal dealt with the evidence about the incidents concerning the removal of the employer's property from the premises concerned. That is set out in paragraph 3(i).

On 9th January 1995 a further disciplinary meeting was convened. Mr Shearman was dismissed. He appealed. The appeal was heard on 27th January 1995 by Mr Stafford-Jones. At that appeal Mr Shearman denied the matters alleged. The tribunal said that there was no doubt, on the evidence of Mr Shearman, that he was fully aware of the specific incidents of which he was accused, whether it was removal of property, or bringing of vehicles on an unauthorised basis on to the premises, or leaving the premises without properly attending to security duties. The tribunal found that Mr Shearman was aware of the essence of the accusations, though it was unfortunate that no specific details were given and no video evidence was shown to him. There was a general denial of the incidents.

The tribunal, having found those facts about the investigations, the interviews, the dismissal, and the unsuccessful appeal, applied the law. If there is an error of law in the decision it has to be found in paragraphs 4 and 5 of the reasoning. As already mentioned, we have no power to query, let alone disturb, the findings of fact which the tribunal have made about the investigations, the circumstances of the dismissal and of the appeal. It is accepted by Mr Wray that the tribunal gave themselves a correct direction in law about the dismissal of employees for suspected misconduct. The tribunal considered that the reason for the dismissal of Mr Shearman was misconduct. Then they looked at the guidance given in such cases as the well-known decision of British Homes Stores v Burchell. According to that decision, a tribunal, in considering an unfair dismissal claim based on misconduct, has to satisfy itself that the employers came to a reasonable conclusion as to the conduct of the applicant based on reasonable grounds after a reasonable investigation. The tribunal had to consider whether the requirements of Section 57(3) have been complied with. There is no criticism of the statement of the relevant legal principles or statutory provisions. The essence of the appeal is that the tribunal were perverse in their application of these principles and statutory provisions to the facts of the case.

The tribunal stated their conclusions, which have been subject to Mr Wray's criticism. They said first:

"The Tribunal are satisfied that, having been put on notice, the respondents did carry out a reasonable investigation in November and December of 1994 ... they did have reasonable grounds to satisfy themselves of the reasonable likelihood of the conduct of which [Mr Shearman] stood accused. It is unfortunate that they did not put [to Mr Shearman] the specific items and specific details and specific element of evidence, but nonetheless the Tribunal are satisfied that they did have reasonable grounds to believe in the misconduct ... which gave rise to termination of employment."

That is the way the tribunal applied the legal principles in Burchell. They then moved, correctly in our view, to consider Section 57(3), under which they have to decide whether a dismissal is fair or unfair having regard to the reason shown by the employer, and having regard to all the circumstances of the case, whether the employer should reasonably or unreasonably in treating misconduct as a sufficient reason for dismissing the employee.

On this aspect of the case, the tribunal considered in detail in paragraph 5 the criticisms of the procedural defects in the investigation, in the disciplinary hearing and in appeal procedure. The tribunal said:

"The Tribunal have given very careful consideration to these arguments and there was some merit in those arguments in that the Tribunal can see that at the disciplinary procedure a proper explanation was not as such requested of each of the applicants and the specific items of which they stood accused in the respondents' minds was not as such put to each of them. However, the Tribunal are satisfied that each of the applicants was extremely well aware of the matters for which they stood accused and indeed did not make any attempt to give the justification which was given to the Tribunal hearing. ... The Tribunal are satisfied therefore that even if the specific items had been put in extensive detail to the applicants, the denials would have continued to the extent that they did and that the alternative explanation that might have caused the respondents to consider changing their position would not have been given in any event."

It was that factor that led the tribunal to conclude that, even if the procedures had been carried out in the way that the tribunal thought they should have been, it would not have made any difference to the result. In considering the procedural defects, they came to the conclusion under Section 57(3) that the dismissal had been fair and reasonable.

We have to ask ourselves, in the light of Mr Wray's submissions, what is wrong in law with that decision? We can well understand that Mr Shearman may hold the view that the tribunal should have come to different factual conclusions about the investigations and the appeal. But, as already explained, the factual conclusions are binding on us and they are binding on Mr Shearman. We have to concentrate on the legal points. The way that Mr Wray put it is that the tribunal had come to a perverse decision in its application of the correct principles and statutory provisions to the facts of this case. He said that no reasonable tribunal could have found that there were reasonable grounds for suspecting misconduct, particularly in the absence of an opportunity given to the tribunal, as well as to Mr Shearman, to view the video evidence. He also said that no reasonable tribunal could, in the view of the facts they found about the disciplinary hearing, have come to the conclusion that it was fair and reasonable to dismiss Mr Shearman for suspected misconduct.

During the course of his submissions, Mr Wray took us through the helpful skeleton argument. That deals in detail with the particular allegations. The main point is that the tribunal were wrong in finding that Mr Shearman did not contest the facts which the videos were alleged to have shown. He says that the tribunal were incorrect to find that Mr Shearman confirmed and supported the contents of the video of shift of 8th and 9th November 1994. He said that the employer could not, on the evidence available at that time, properly be regarded as having reasonable grounds to believe in Mr Shearman's misconduct. The employer could not properly be regarded as having treated those allegations and evidence as a sufficient reason for dismissing him, having regard to his previous good disciplinary record, and having regard to the failure of the employers to allow him to consider the videotapes and other specific evidence of specific items of wrong-doing.

We are grateful to Mr Wray for those submissions. They have helped to clarify our consideration of this decision. The conclusion we have reached is that, even though Mr Shearman may find it difficult to accept the correctness of this decision, there is nothing legally wrong with it. The tribunal have found facts which, in our view, support the application of the principles, which they have correctly set out, to the facts. The tribunal were entitled, in our view, to conclude that the employer had reasonable grounds for suspecting misconduct. They had carried out a reasonable investigation about their suspicions. In all the circumstances, despite the procedural defects, they reached a decision that it was fair and reasonable to dismiss the employee. We are not able to find in paragraphs 4 and 5 of the reasoning any arguable legal error. In those circumstances, there is no point in this case proceeding to a full hearing. It will accordingly be dismissed.