Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> London Borough Of Lambeth v Rose [1996] UKEAT 141_95_2901 (29 January 1996)
URL: http://www.bailii.org/uk/cases/UKEAT/1996/141_95_2901.html
Cite as: [1996] UKEAT 141_95_2901
[New search] [Help]
At the Tribunal
Judgment delivered on 25 March 1996
HIS HONOUR JUDGE C SMITH QC
MR D J JENKINS MBE
MRS R A VICKERS
JUDGMENT
Revised
APPEARANCES
For the Appellants MR A BRADLEY
(of Counsel)
Director of Legal Services
London Borough of Lambeth
Lambeth Town Hall
Brixton Hill
London
SW2 1RW
For the Respondent MR A SNELSON
(of Counsel)
Messrs Arden MacCabee
& Co
Solicitors
319-321 Camberwell
New Road
London
SE5 OTF
JUDGE C SMITH QC: This is an appeal by the Respondent Council, the London Borough of Lambeth, against the decision of an Industrial Tribunal sitting in August and December 1994 that the Respondent, Mr Vincent Rose, had been unfairly dismissed by the Appellants from his employment as a Housing Assessment Officer on 13 January 1994.
It is common ground that the dismissal was on the grounds of gross misconduct namely a finding by the Appellant Council that the Respondent had fraudulently assessed an application for housing made by his ex brother-in-law, one Terry Banton, and secondly, that he had failed to disclose that he was having a relationship with one Miss Hall (to whom the Respondent is now married) at the time when he was assessing her application for housing in early 1992. It is also common ground that an allegation of misconduct was found proved against the Respondent namely that he had failed to make adequate disclosure of his interest in assessing Mr Banton's application arising from the fact that he was Mr Banton's ex brother-in-law.
Finally it is also common ground, as appears from the finding of the Industrial Tribunal, that disciplinary proceedings had been held in relation to these charges in November and December 1993 which was followed by an appeal hearing on 26 April 1994 at which the findings before the disciplinary panel were varied in that the charge of failure to disclose an interest in the case of Mr Banton was reduced from gross misconduct to misconduct and the charge originally found proved of gross misconduct in fraudulently assessing Miss Hall's claim was dismissed by the Appeal Committee. The Appeal Committee, however, upheld the disciplinary panel's decision to dismiss the Respondent for the two remaining charges of gross misconduct which they had upheld.
The point raised on this appeal arises from the submission made on behalf of the Appellants that, on a fair reading of the Industrial Tribunal's decision, it is evident that the Industrial Tribunal, despite having correctly set out the principles of industrial relations law applicable in making their finding as to whether the dismissal was fair under Section 57(3) of the 1978 Act, had nevertheless gone on to substitute their own decision for that of the employers, instead of deciding whether the employer's decision was within the bands of reasonableness which an employer could make and in particular whether the Appellant Council's disciplinary panel believed that the Respondent had been guilty of gross misconduct and, if so, whether the panel had reasonable grounds for such a belief.
Counsel for the Appellants submits that, on analysis of the Industrial Tribunal's decision, they have fallen into the error of substituting their own view of the matter, whereas Counsel for the Respondent submits that the Industrial Tribunal have not only stated the correct test by reference to decided authority but also applied it correctly by deciding, as he submits they did, that the disciplinary panel did not have reasonable grounds for believing that the Respondent had been guilty of either charge of gross misconduct which the panel found proved against him.
Before we examine the Industrial Tribunal's decision in order to decide between these submissions we must set out the facts and circumstances leading up to the eventual decision to dismiss the Respondent and some of the findings of the Industrial Tribunal and refer to the evidence before the Industrial Tribunal.
The Industrial Tribunal set out the factual background which was not in dispute in paragraphs 5 to 9 of their decision. As appears from these findings the Respondent was appointed a Housing Assessment Officer in September 1988 and as such was responsible for the interview and proper statutory assessment of homeless families in accordance with the Appellants' policies and procedures. He was suspended in February 1993, arrested by the Police in April 1993 but no charges were ever laid against him, informed by letter of 18 May that he would have to attend a meeting relating to an internal control investigation, then notified of the charges by letter dated 28 May 1993 and asked to attend a disciplinary hearing on 9 June 1993. Ultimately the disciplinary panel heard the charges in November and December 1993 and dismissed the Appellant on 13 January 1994. His appeal was heard on 26 April 1994.
It is important in our judgment to refer to certain facts and matters in order that the issues in this appeal can be understood. We have taken the following from the findings of the Industrial Tribunal, the evidence before the Industrial Tribunal, and the documents placed before us on the hearing of this appeal, which documents were before the Industrial Tribunal. At the material time the Respondent was employed as a Housing Assessment Officer by the Appellants; a post he had held since September 1988. As appears from the Job Description for the post a Housing Assessment Officer is responsible and accountable for the efficient interview and assessment of the statutory housing requirements of homeless families, in accordance with Council's policies and procedures, part 3 of the Homeless Housing Act 1985, and related legislation.
Whilst it is correct, as the Industrial Tribunal noted, in paragraph 9 of its decision, that there is no express reference in the Council's disciplinary rules relating to disclosure of interest by a Housing Assessment Officer, it is in our judgment beyond dispute that a Housing Assessment Officer must comply with the usual high standards to be expected of local Government Officers as contained in the Purple Book and must be scrupulously careful not to allow any personal interest of his to conflict with his very important public duties.
In our judgment, it is self-evident that such an implied obligation of good faith and integrity fully applies to Housing Assessment Officers having, as they do, the important public responsibility of assessing applications for housing under the Homeless Persons legislation. Obviously it is essential in the public interest that such applications be considered and dealt with in a disinterested and objective manner by the housing officers who, like the Respondent, have the duty to make such assessments.
The allegation of misconduct by the Appellants against the Respondent in relation to Mr Terry Banton arose from the following circumstances. On 9 April 1992 Mr Terry Banton made an application for housing as a homeless person in priority need. That application, in so far as it was said to disclose facts giving rise to a priority need, was based upon the representation that Byron, the son of Terry Banton and a woman by name Shirley Douglas, would be residing with him thus giving rise to a priority need. In fact, as subsequently became clear, an injunction had been granted by the Family Division of the High Court at the suit of Miss Douglas against Terry Banton preventing him from removing Byron from Miss Douglas's care, and shortly thereafter, in July 1992, an order was made that the child should reside with its mother until further order.
By January 1993 the Internal Control Team of the Appellants were in possession of a statement signed by Miss Douglas stating that in January 1992 she had been approached by Mr Terry Banton and prevailed upon to write a letter in order to support his application for housing provision falsely stating that Byron was in his care.
The Respondent was Mr Terry Banton's ex brother-in-law. He had been married to Terry Banton's sister Carol Banton from whom he had been separated in 1989-1990 and whom he finally divorced on 7 May 1992. The Respondent was the responsible Housing Assessment Officer dealing with Mr Terry Banton's application for housing. At the time when Mr Terry Banton made his application he was living with his brother Mr Clive Banton at the latter's address at 41 Perrin Road and the application by Mr Terry Banton that he was homeless and in priority need was made from that address. With effect from January 1992 the Appellants had instituted a method whereby, as a means of control, computer-based recordings were kept of the destination of outgoing telephone calls made by those, including the Respondent, working in the Homeless Persons Section of their Housing Department. A summary of these calls revealed that, with effect from January 1992, a number of calls were made by the Respondent to that address and that in March 1992 no less than 11 calls were made to that address by the Respondent.
With regard to Miss Hall the case against the Respondent made by the Appellants arose as follows. In October 1990 Miss Hall had made an application for housing as a homeless person which had been dealt with by the Respondent. Eventually an authorisation for housing for Miss Hall was issued in October 1990. Thereafter repeated requests were made by Miss Hall in 1991 in respect of such matters as change of area of choice, fresh allocation to larger accommodation, and in respect of medical problems requiring medical assessment. In February 1992, after a medical assessment, an offer was made to Miss Hall of re-housing at 46 Halsmere Road, SE5 and eventually she moved in on 27 April 1992. Up until about the end of February 1992 the Respondent was still dealing with Miss Hall's application in his capacity as a Housing Assessment Officer.
In September 1992 the Respondent orally informed Miss Quest, the Appellants' Housing Assessments Manager, that he had begun a relationship with Miss Hall which he then claimed had started in May 1992 and that he was intending to marry her in July 1993. He is now married to her and certainly by May 1993 he had moved into 46 Halsmere Road in Camberwell. The Respondent informed Mrs Quest that he had interviewed Miss Hall in October 1990 and did not disclose any dealings with her housing application after that date. Miss Quest asked the Respondent to confirm this in writing which he did by his letter of September 1992.
In fact it was Miss Quest's evidence before the disciplinary panel that she had seen a person described to her by a third party as Miss Hall in the company of the Respondent at a Christmas party in 1991. However, of much more significance than that, in the eyes of those within the Appellants' senior management responsible for investigating the allegations against the Respondent, was once again the evidence from the telephone log. This showed that for the first four months of 1992 ie prior to the date when the Respondent had stated to Mrs Quest both orally and in writing that his relationship with Miss Hall had started, a very considerable number of outgoing calls had been made by the Respondent to Miss Hall's extension number at her place of employment, namely Southwark Borough Council, where she worked in the Right to Buy Section of the Housing Finance Department. There were 11 such calls in January, 14 in February, 15 in March, and 8 in April.
It was in the light of the above that the Respondent came to be suspended on full pay in the terms set out in the Appellants' letter of 2 February 1993, whilst the above matters were investigated by the Appellants. It is apparent that there was also some kind of police investigation but it is right to say that no charges were ever brought against the Respondent. There followed correspondence between the Respondent's Solicitors and the Appellants in the course of which the Appellants explained in April 1993 that investigations were then continuing relating to alleged irregularities relating to the Respondent's work. By letter dated 18 May 1993 the Respondent was required to attend a disciplinary meeting on 27 May 1993. There followed the implementation of the Appellants' disciplinary procedure in respect of four charges of gross misconduct as set out in the Appellants' letter of 28 May 1993.
It is common ground that at the first stage of the disciplinary process the charges were considered by a disciplinary panel consisting of a number of officers of whom Mr Walsh, the Neighbourhood Housing Manager, who gave evidence before the Industrial Tribunal, was one. At the hearing the Respondent was represented by Solicitor and Counsel. The disciplinary panel met on five occasions in November and December 1993. During the course of the lengthy hearing a considerable amount of documentation was placed before the disciplinary panel, including of course the telephone logs, and evidence was given by a number of witnesses including Miss Quest, the Respondent, Paul Dorant (the officer who had allocated 46 Halsmere Road to Miss Hall), Mr Knaggs who was also presenting the management's case against the Respondent, all of whom were examined and cross-examined. It is also apparent that a considerable number of witness statements were also before the panel, including statements from various members of the Banton family, Miss Susan Bailey, who in 1991 and 1992 had been employed as the Respondent's supervisor, Cheryl Phillips, Deborah Timol, Gladstone Burke, Donna Harris, and Shirley Douglas. At the conclusion of the evidence submissions were made on both sides and the panel had to consider their decision.
During their deliberations, which took place on or about 20 December 1993, Mr Walsh made notes which were before the Industrial Tribunal which appear at pages 93 to 96 of the Supplemental Index of documents. We were told, and there is no dispute about it, that the form which Mr Walsh's evidence-in-chief took before the Industrial Tribunal was for him to go through the various headings which he had made at the time of his deliberations consisting of points developed by each side in the course of the hearing, and explain in that way the form in which the deliberative process had taken place. By his letter to the Respondent dated 30 December 1993 the Chairman of the Panel, Mr Ephson, wrote setting out the findings of the Panel. Of the six charges, charges one to four which concern Mr Terry Banton and Miss Hall were found proved whilst charges five and six, which related to a separate matter, were found not proven. The letter went on to inform the Respondent that he was summarily dismissed subject to ratification by the appropriate officer and the Respondent was informed of his right to appeal. The Respondent exercised his contractual right to appeal and there followed lengthy appeal hearings by way of review of the Panel's decision which were conducted by an Appeal Committee on several dates between 18 and 26 April 1994.
The Appeal Committee upheld the charges of fraudulent assessment in the case of Mr Terry Banton and failure to disclose an interest in the case of Miss Hall, but reduced the finding from gross misconduct to misconduct in relation to the charge of failing to disclose an interest in the case of Mr Terry Banton, and found the charge of fraudulent assessment in the case of Miss Hall not proven. In the light of its findings the Appeal Committee upheld the dismissal of the Respondent.
At the hearing the Industrial Tribunal heard evidence from Mr Walsh, a member of the disciplinary panel, and from Mr Beattie who was involved also in the appeal procedure and from the Applicant himself.
It is clear in our judgment from the evidence before the Industrial Tribunal that the charge against the Respondent in relation to Mr Terry Banton's application for emergency housing was that, by reason of the Respondent's close family association with Mr Banton, who was the Respondent's ex-wife's brother, the Respondent must have known that Mr Terry Banton was putting in a fraudulent claim for priority need housing accommodation by falsely asserting that when he had to move out of his brother Clive's address because of lack of space his son Byron would be living with him, whereas the truth was, as Mr Banton and the Respondent knew, that Byron would be living with his mother. The charge against the Respondent was that despite his knowing what the true position was in relation to Byron, he had knowingly entered incorrect information on Mr Terry Banton's application form to the effect that Byron would be living with him. That this was in fact the charge which the panel found proved against him is perhaps made most clear from the finding of the Appeal Committee which upheld the finding of the disciplinary panel in these terms:-
"It was felt on the balance of probability that Mr Rose had knowingly entered incorrect information on Mr Banton's application form and charge two (which was of course the charge of fraudulent assessment in the case of Mr Terry Banton) was accordingly found to be proven."
It is plain that the Appellants' case before the panel was based upon (1) the close family relationship between the Respondent and Mr Banton and (2) the telephone log showing numerous telephone calls from the Respondent to 41 Perrin Road, the address where Mr Banton lived with his brother Clive and from which his application had been made.
The Respondent was, as we have explained, represented legally at the disciplinary hearings and denied that he had any reason to doubt the correctness of what he put in the assessment form relating to Mr Banton.
With regard to the allegation of gross misconduct in relation to Miss Hall's application it was the case against the Respondent before the disciplinary panel that he had embarked upon a relationship with Miss Hall from about December 1991 and that this had continued through the early months of 1992 when the Respondent was still assessing her housing application. It was common ground that no disclosure of the Respondent's interest arising out of his relationship with Miss Hall was made until September 1992. It was the Respondent's case before the panel that his relationship with Miss Hall did not start until May or June 1992 and that he did not commence living with her until November 1992.
The management's case against the Respondent with regard to Miss Hall was based (a) in part on the evidence of Miss Quest given to the panel that she had seen Miss Hall in the company of the Respondent at a Christmas party in December 1991, and (b) mainly, on a telephone log showing over 40 telephone calls being made by the Respondent to Miss Hall's extension number at Southwark Council where she worked in the Council's Right to Buy Department between January and April 1992.
Plainly, one of the main planks of the case against the Respondent was what Mr Walsh described in evidence before the Industrial Tribunal as the exceptional number of phone calls made to Miss Hall by the Respondent, and the fact that Mr Walsh did not find credible the explanation that the calls were needed to investigate Miss Hall's change of address. In addition it is to be noted that Mr Walsh gave evidence before the Industrial Tribunal that the panel found the evidence of Miss Quest to be reliable, and that there was a direct conflict between the evidence of Miss Quest and that of the Respondent before the panel.
Before considering in detail the Industrial Tribunal's decision we must refer to the authorities cited to us by Counsel. As is clear from British Gas Plc v McCarrick [1991] IRLR 305 and Scottish Midland Co-operative Society Ltd v Cullion [1991] IRLR 261 an Industrial Tribunal must not substitute its own view for that of a reasonable employer or seek to reopen the factual issues upon which the employers reached their conclusion. In particular, in applying the test in British Homes Stores Ltd v Burchell [1980] ICR 303 the question for the Industrial Tribunal is not whether, by an objective standard, the employers belief that the employee was guilty of misconduct in question was well founded, but rather whether the employer's believed that the employee was guilty, and were entitled so to believe having regard to the investigation carried out by the employer. In W. Weddell & Co v Tepper [1980] ICR 286 at page 303 Cumming Bruce LJ in dealing with the reasoning of the Industrial Tribunal in that case stated:-
"A scrutiny of paragraph 17 of the reasons of the majority of the industrial tribunal convinces me that it has been shown that they lost sight of the fact that their task was to consider whether the employers carried out an appropriately careful investigation, but became confused by attempting to form their own view on what they thought was the quality of the evidence that the industrial tribunal had heard as the evidence or material considered by the employers at the relevant time. Had that been the only ground on which the industrial tribunal (by a majority) arrived at their decision I would have thought it right to reverse the judgment of the appeal tribunal and the decision of the industrial tribunal. ..."
To similar effect is Neal v Hereford and Worcester County Council [1986] ICR 471 where the Court of Appeal reaffirmed the important principle that neither an Industrial Tribunal nor the EAT should substitute its own decision for that of the employer and that in every case there was a band of reasonable responses to an employee's conduct within which one employer might reasonably take one view which differed from that reasonably taken by another and a dismissal is only unfair if the decision to dismiss fell outside the band of reasonable responses approving the very well known dictum of Browne-Wilkinson J, as he then was, in Iceland Frozen Foods Ltd v Jones [1983] ICR 17 at pages 24 to 25.
We were also reminded by Counsel for the Respondent, correctly, that we only have power to set aside the decision of an Industrial Tribunal if it is shown that in reaching its decision it has erred in law and of the cardinal importance of the EAT resisting the temptation to seek to overturn a factual decision by searching for some shadowy point of law. See in particular the judgment of Lord Justice May in Neal v Hereford at page 480 A to E.
Counsel for the Appellants, Mr Bradley, submitted that on application of the above principles to the decision of the Industrial Tribunal in this case it was apparent that the Industrial Tribunal had substituted their own view in the case of the findings of gross misconduct both with regard to Mr Terry Banton and also Miss Hall. He submitted that in so doing the Industrial Tribunal misapplied the test in British Home Stores Ltd v Burchell. He submitted that on application of the correct test it was plain that the Appellants had carried out a reasonable investigation and had formed a reasonable belief on reasonable grounds that the Respondent was guilty of the gross misconduct alleged against him.
Counsel for the Respondent, Mr Snelson, submitted that on proper analysis there was no point of law in the appeal and that the decision of the Industrial Tribunal was well within the band of reasonable decisions which an Industrial Tribunal could make. In the case of both allegations of gross misconduct he was strongly critical of the quality of the evidence which the Appellants had acted upon and of the way in which they presented their case before the Industrial Tribunal. He pointed to the fact that no written record of the evidence before the disciplinary panel was put before the Industrial Tribunal. With regard to the Banton allegation, he submitted that the material placed before the Industrial Tribunal was vague and imprecise.
Counsel for the Appellants submitted that the headings on the deliberation sheets at pages 93 and 94 in the bundle did not establish any kind of a case against the Respondent and he submitted that the letter of dismissal contained no adequate statement of reasons for the dismissal. He further submitted that the telephone calls which were proved to have been made by the Respondent to Mr Clive Banton's address proved nothing against the Respondent with regard to the Banton allegation. He submitted that the Appellants could have obtained what he called "hard" evidence as to the guilt or innocence of the Respondent on this charge whereas, he submitted, the Appellants chose to rely on what he described as inadequate circumstantial evidence.
He was similarly critical of the nature of the Appellants' evidence against the Respondent with regard to the allegation in respect of Miss Hall. He submitted that Miss Quest's evidence of having seen the Respondent in company with Miss Hall at Christmas 1991 was not worthy of belief and that the evidence of the telephone calls was too weak to justify the inference that the Respondent had a relationship with Miss Hall prior to May 1992, especially in the light of the statements of Cheryl Phillips, Gladstone Burke, Miss Harris, and Mr Warren,
Counsel for the Respondent's submission was that on a true reading the Industrial Tribunal's findings did not amount to an improper substitution of their own view as to whether the Respondent was guilty of gross misconduct but were rather no more than a proper finding of fact that the Appellants had no reasonable grounds for believing that the Respondent had been guilty of gross misconduct.
Counsel for the Appellants, on the other hand, emphasised that in evidence before the Industrial Tribunal the Appellants had not simply relied upon the various numbered points by way of headings on the Deliberation Sheets but had called Mr Walsh who had gone through them in detail in his evidence and explained to the Industrial Tribunal the way in which the panel had considered the various charges in the light of the evidence before them. Counsel pointed out that none of the witnesses whose statements were in the supplementary bundle had in fact given evidence before the disciplinary panel. He submitted that the evidence of the telephone calls made by the Respondent to the Banton address and to Miss Hall's place of work were very strong circumstantial evidence indeed of the Respondent's misconduct and he submitted that the panel were fully entitled to believe Miss Quest as Mr Walsh gave evidence that they had and to reject the evidence of the Respondent.
Whilst we agree with Counsel for the Respondent that the Appellants did not present their case as clearly as they might have done, and indeed could have done before the Industrial Tribunal, at the end of the day what we have to decide is whether the Industrial Tribunal has or has not substituted its own view for that held by the Appellants rather than finding as a fact that the Appellants had no reasonable grounds for their belief that the Respondent was guilty of gross misconduct.
In the case of the Banton allegation in our judgment the crucial paragraphs in the decision are subparagraphs 10(A)(vi) and subparagraph 13(A)(2).
In our judgment in subparagraph 10(A)(vi) the Industrial Tribunal has first of all mis-stated the evidence which was before the disciplinary panel by wrongly referring to a log of telephone calls made in "June 1992". In fact the log of calls was made between January and June 1992 and it was the number of calls made particularly those in January, February, and March 1992 which was the basis of the evidence from which the Appellants formed their belief that it was more probable than not that the Respondent knew that Mr Terry Banton was putting forward a fraudulent application. Having so misstated the evidence, the Industrial Tribunal, in our judgment, then proceeded to substitute its own view in the comment "Although the Applicant went training with Clive it did not follow that family relations were discussed in detail". In our judgment, the Industrial Tribunal has similarly substituted its own view in subparagraph 13(A)(2), where it states:-
" ... We accept the Applicant's evidence that although he was friendly with Terry's brother Clive he did not have a relationship with Terry after the Applicant had separated from Terry's sister in 1989/90."
This conclusion in our judgment amounts to an expression of the Industrial Tribunal's own view, based on their assessment of the evidence which they had heard from the Respondent, rather than a decision as to whether the Appellants had reasonable grounds for forming their belief.
In reaching this conclusion we have taken into account that in the immediately preceding sentence in subparagraph 13(A)2) the Industrial Tribunal have stated the correct test, as they have also in paragraph 14 of the decision, but in our judgment, on a fair reading of their decision the Industrial Tribunal have concluded that the Appellants did not have reasonable grounds for their belief as a direct result of the view which they themselves had formed of the matter after hearing the Respondent, and in that way have substituted their own view.
With regard to the Industrial Tribunal's decision relating to the charge of gross misconduct found proved in relation to the non-disclosure of the Respondent's relationship with Miss Hall, we consider that the crucial parts of the Industrial Tribunal's decision are subparagraph 10(B)(ii), and subparagraph 13(B)(2). In our judgment the finding of fact in subparagraph 10(B)(ii) amounts to a finding by the Industrial Tribunal that they preferred the Respondent's evidence to that of Miss Quest. Whilst the facts that the Respondent had told Miss Quest of the relationship with Miss Hall and asserted that it had not started until after the assessment of her application were not in dispute, what was in dispute was the suggestion that Miss Quest had indicated there was no need to worry about it. This was in dispute, and the Industrial Tribunal, unlike the disciplinary panel, had not heard Miss Quest's evidence but only the evidence of the Respondent. Further, in our judgment the Industrial Tribunal's conclusion in subparagraph 13(B)(2) amounts to a substitution of their own view of the truth of the matter instead of an assessment of whether the Appellants had reasonable grounds for the view which they, as employers, had reached. The Industrial Tribunal, in stating its conclusion, do not make any assessment at all of the key evidence against the Respondent namely the large number of telephone calls made by the Respondent to Miss Hall between January and April 1992 which, as is plain from Mr Walsh's evidence before the Industrial Tribunal, had been found by the disciplinary panel to be wholly inconsistent with the Respondent's claim that he had only commenced a relationship with Miss Hall in May 1992. Here again, we have taken into account that both in subparagraph 10(B)(iii) and in paragraph 14 the Industrial Tribunal have stated the correct test in arriving at their conclusion but although they stated the correct test they did not properly apply it but rather substituted their own view of the matter.
We have also considered Counsel for the Respondent's submission that the Industrial Tribunal's decision that the dismissal was unfair can be justified by its conclusion in paragraph 13(A)(3) relating to Mr Terry Banton, where the Industrial Tribunal say they have "noted" the lack of evidence of any investigation after the Respondent was suspended, and the delay in informing him why he was suspended, and that they have "accepted" that the Respondent first knew of the reason why he was suspended when he was arrested by the police on 26 April 1994.
We cannot construe these observations as amounting to any finding that the Appellants had not carried out a reasonable investigation; nor in our judgment could any such finding be warranted since it is inevitable that serious allegations of the kind made here will take some time to look into before a decision can be taken whether disciplinary charges are to be brought, especially where the police are involved. In our judgment the Industrial Tribunal did no more than "note" these points but they cannot be said to have made any findings upon them adverse the Appellants.
We have also considered the submission that the Industrial Tribunal regarded the sanction of dismissal as unfair having regard to the long service (12 years) and good record of the Respondent. Here again, in our judgment, whilst the facts of good record and good service were certainly recorded by the Industrial Tribunal in paragraph 14, there is no finding in relation to them, save perhaps an implicit finding that the Appellants should have accepted the Respondent's explanation because of his good character, which once again in our judgment indicates that the Industrial Tribunal has wrongly substituted its own view for that of the Appellants.
In our judgment the decision of the Industrial Tribunal for the reasons we have given cannot stand. Further, it is clear in our judgment, that had the Industrial Tribunal applied the correct test under British Home Stores Ltd v Burchell, namely whether the Appellants had reasonable grounds for reaching the conclusion that it was more probable than not that the Respondent had been guilty of gross misconduct by involving himself in Mr Banton's fraudulent application based upon the deception relating to the child and also by failing to disclose his relationship with Miss Hall at a time when he was assisting her in her application for emergency housing, the Industrial Tribunal would have been bound to conclude that the Appellants had reached a conclusion which was within the band of reasonable conclusions which a reasonable employer could reach.
It is apparent from the evidence which was before the Industrial Tribunal which we have summarised earlier in this judgment, that the disciplinary panel had material before them from which they could reasonably hold the belief that the charges were made out on the balance of probabilities, and accordingly we deem it appropriate that we should allow the appeal and make an order that the Respondent was fairly dismissed. Accordingly, we so order.