United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MAURICE SUCKLING (Representative)


 


MRS JUSTICE SMITH: This is the preliminary hearing of an appeal against a decision of an Industrial Tribunal sitting at Stratford on 31 January 1996. The Tribunal dismissed the Appellant's claim that he had been unfairly dismissed by his employers.

The Appellant was employed as a fork lift truck driver until his dismissal on 29 June 1995. On 25 May 1996 the Respondents found that a security camera had been blanked out by the use of a sticky label. Mr Lambert, a Manager at the Respondents, investigated the matter. Three fork lift trucks had been parked in the area by the camera. Mr Lambert looked at the video from the camera. It was apparent that two fork lift trucks had been parked within sight of the camera, so he concluded that the third must have been the one used by the person who had applied the sticky label. It was accepted by the Appellant that that was a reasonable conclusion. He also obtained some records to establish who was in the area at the time and it was on that basis of that information that he came to the conclusion that the culprit probably had been one of three truck drivers of whom the Appellant was one.

Mr Lambert then continued his enquiry and excluded the other two employees. He told the Tribunal that they were able to show that they were elsewhere at the time. He was also satisfied that it was their fork lift trucks which were visible from the camera and the Appellant's which had been used by the culprit. He interviewed the Appellant and listened to the explanation which was, as we are told, although it is not recorded in the decision, that the Appellant had, after parking his truck in the area, gone to the lavatory. The Appellant was suggesting that it must have been somebody else who had used his truck to climb up and apply the sticky label.

Mr Lambert concluded that the Appellant was responsible. He took a serious view of this conduct and decided to dismiss the Appellant.. It was not disputed before the Tribunal that it was reasonable for an employer to take a serious view of the matter, because the safety of employees and the security of the business were put in jeopardy.

Mr Suckling, who has appeared before us, also appeared before the Industrial Tribunal. He has accepted, we think realistically, that the Tribunal were right to refer themselves to the case of British Home Stores v Burchell. He reminded us that where there is more than one suspect in a case of alleged misconduct, there must be good clear reasons why the dismissing Officer reaches the conclusion that it is the dismissed employee who is guilty rather than the others. His only complaint is that the Tribunal should not have accepted Mr Lambert's conclusion as reasonable.

He complains that when Mr Lambert came to the stage of his evidence in which he was explaining why he had excluded the other two men, he must have used an expression such as "they were able to show that they were elsewhere". Mr Suckling then wished, he told us, to ask a number of further questions. He wished to investigate whether Mr Lambert had gone into the explanations offered by the other two men in the same depth as he had examined the explanation of the Appellant, and he has told us that he was not allowed to do so. The Chairman said something like "He has already answered that". However, the Chairman's comments on this allegation have not been sought. We have considered whether we should adjourn this hearing to obtain the Chairman's comments but have decided that we should not.

It appears to us that the Industrial Tribunal have not erred in law. They have directed themselves correctly in respect of Burchell; they have examined Mr Lambert's investigation; they have recorded that Mr Lambert excluded the other two employees, because they were able to show that they were elsewhere at the time, and they have recorded that Mr Lambert was careful in listening to the explanation given by the Appellant and his rejection of it. On the facts found they were entitled to reach their conclusion.

It may be that the Chairman did cut short a proposed line of cross-examination. That happens from time to time, sometimes for good reason. If an advocate wishes to pursue a course of questions it is up to him to do so and to protest politely but fearlessly if he is stopped. If leave is refused after argument, he must accept the decision and may complain later. He cannot mount an appeal on the basis that his questions were stopped unless he has argued the point at the time. That was not done here.

In the event, we do not think it could be said that this Tribunal failed to give a fair hearing.

Accordingly, this appeal must be dismissed at this preliminary stage.