United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 485_95_2604

Appeal No. EAT/485/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 26 April 1996

HIS HONOUR JUDGE B HARGROVE QC

MR J D DALY

MR R N STRAKER

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MOLNLYCKE LTD          APPELLANTS

MR B E HULATT          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR BEN SEFI

(of Counsel)

Messrs Giffen Couch & Archer

Solicitors

20 Dunstable Road

Luton

Beds

LU1 1DY

For the Respondent MR D ABBOTT

(of Counsel)

Mr Saf Awan

Solicitor

2 Cardiff Road

Luton

Bedfordshire

LU1 1PP


 


JUDGE B HARGROVE QC: On 6 April the Industrial Tribunal held that this Respondent had been unfairly dismissed from his job as a warehouse operative. He had been employed with the Appellants for some 12 years. On 14 March he was dismissed and the reason for dismissal was gross misconduct. The offence was (in colloquial terms) that he was believed to be "the inside man" concerned with the theft of a lorry load of pallets from the Appellants' premises between 12.30 and 1.00 pm on 4 March.

The evidence against him, in outline, was that he had attended at the premises clocking out at 12.27, when the rest of the warehouse staff had left. Secondly, he was believed to be a friend of the lorry driver in question. Thirdly, there was evidence of telephone calls made to a Vodaphone number. That phone was answered in the name of Ronco Pallets when a test call was made. On a print-out it was shown that there had been three calls since print-outs were available. Two were made on 12 February and one more significantly was made on 5 March.

It seems to be clear that the Respondent could not have made one of those calls on 12 February. The management looked at some employees who were present on the premises. They reached the conclusion that they could "fine down" the area of suspects to a Mr Wootten and the Respondent. It was of course significant that the Respondent was a fork lift truck driver and this was a matter which was clearly in the minds of the Appellants, because it is alleged that the loading of the lorry with pallets could not have been done, or not at least done within any reasonable time, without the assistance of such a mechanical aid.

Mr Hulatt was interviewed on 10 March. It seems that he was told that they were investigating an incident involving gross misconduct, but at the start of that interview which was conducted by Mr Owen and Mr Bagshaw, he was not told that he was under suspicion. It seems that he was asked to explain his movements between 12 noon and 1.00 pm. He said that he had returned home directly.

In fact, Mr Bagshaw, who was the person who had seen the lorry load of pallets going out, had also seen Mr Hulatt entering a betting shop. Mr Hulatt did not mention the betting shop. He was also asked why he came in on 12 February, when he was in fact on holiday and not only came in when he was on holiday, but also came in when he was wearing the "strip" (I will call it the strip because that was the expression that was used) of the Company. He explained that he had come in in order to pick up some material in order to repair a radiator at home.

At that interview Mr Bagshaw and Mr Owen formed the view that the Respondent was guilty. He was suspended on 10 March. He was told to attend a disciplinary hearing on 14 March. He attended on 14 March. He advanced no further matters than those that he put forward previously and he was told that he was to be dismissed for gross misconduct. He was informed of his right of appeal. He chose not to exercise it.

Before leaving that, it is right to say that one of the factors which appears to have some influence with the Disciplinary Tribunal was that Mr Hulatt had a previous occasion when he had trouble, of a disciplinary nature, and on that occasion he had fought "tooth and nail" and exercised his rights of appeal and they were struck by the fact that this was a change of approach, a change of demeanour, by Mr Hulatt.

The Industrial Tribunal dealt with the matter in this way. At paragraph 9 it says:

"9. Thereafter Mr Bagshaw and Mr Owen decided that they would interview Mr Hulatt. Mr Bagshaw went to fetch Mr Hulatt from the warehouse and told him that he was going to be interviewed with regard to an incident of gross misconduct which might lead to dismissal. Mr Bagshaw did not inform Mr Hulatt at that stage that he was under suspicion. Thus it was that Mr Hulatt was interviewed and a note of that interview is to be found at page 44 Bundle A. The note was made up after the meeting, as no notes were taken during the course of this interview. Mr Hulatt was asked to give an account of his movements on the site between 12 noon and 1.00 pm. Mr Hulatt explained that he had been asked by Mr Parker who was working the end of the line in the production area to provide him with some pallets. This Mr Hulatt had done and had also removed completed production into the warehouse. He explained that he had completed this task and thereafter the fire alarm had gone off. After this he had clocked out and gone straight home. When challenged about the route which he had allegedly taken home, he admitted immediately to having gone to the betting shop. Mr Hulatt was asked whether he had made any telephone calls and he denied making any. He was also asked why he had come to work on 12 February when he was on holiday on that day. He explained that he had come in wearing his overalls in order to get some Cellduk and had then left. By the end of the meeting Mr Hulatt was made aware of the fact that the company suspected a theft and further suspected his involvement in it."

The Tribunal goes on, when they come to deal with the actual dismissal in these terms:

"13. The respondents have put forward conduct as the reason for the applicant's dismissal. This is a potentially fair reason, which we accept. Having so accepted it, it is for us to decide whether the respondents acted reasonably in treating their reason as a sufficient reason to dismiss. We have looked at the respondents' disciplinary rules which are to be found in the handbook at page 20 Bundle A. With regard to disciplinary hearings the handbook provides

`When a hearing is to take place, the manager will arrange a meeting with the employee in private and inform the employee in advance of the nature and seriousness of the matters to be discussed'.

This did not occur in the case of Mr Hulatt. He was called to a meeting and only told that gross misconduct was being investigated. Mr Hulatt thereafter was suspended but was not told that he was to attend a disciplinary hearing nor was the specific allegation being made against him told to him. Mr Hulatt was not told the information which had been gathered by the respondents. Whilst we readily appreciate that there is no specific rule that the statements of witnesses should have been made available to Mr Hulatt, he ought nevertheless to have been informed, albeit in general terms of the evidence against him. We have referred ourselves to the words of Mr Justice Wood in Spink v Express Foods Group Ltd [1990] IRLR 320 where at page 323 he states:

`However, fairness surely requires in general terms, that someone accused, should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence, and to adduce his own evidence and argue his case. How each such disciplinary hearing is handled will lie very much in the hands of management, there may be more than one hearing, there may be adjournments for one reason or another and outside the basic and fundamental principles of fairness to which we have alluded, there may be many variations'.

These are the fundamental tenets of fairness and in our unanimous view they were breached by the respondents in this case."

The Tribunal then continues to consider the belief of the Respondents in the Applicant's guilt and they say this:

"14. Furthermore, whilst we are satisfied that the employers formed a belief in the applicant's guilt, we are not satisfied that the employers had reasonable grounds on which to sustain that belief and certainly had not carried out as much investigation into the matter as was reasonable. On the respondents own evidence, their enquiries were not specific but wholly general. The questions which they were asking were in Mr Bagshaw's words `open ended' and those questioned were not told specifically that enquiries were being made about the applicant. In those circumstances we unanimously conclude that the respondents' investigations fell short of what was reasonable in the circumstances, for Mr Hulatt was a long serving employee who had received a warning only once on a matter totally unrelated to the type of incident currently under investigation. Finally, although we accept that there is nothing unusual in an internal enquiry such as this for the employer to make his own enquiries and then to reach a decision whether or not he should dismiss, we are nevertheless concerned that Mr Owen had not only taken part in the respondents' enquiries but had also been present during Mr Hulatt's first interview on 10 March and that he had, at the conclusion of that interview in discussion with Mr Bagshaw, formed a view as to the applicant's guilt and having so formed the view, he conducted the disciplinary hearing and took the decision to dismiss. That in our view involved a breach of the rules of natural justice. Therefore on balance, we unanimously conclude that the respondents actions fell out with the parameters of reasonableness and it therefore follows that we find the applicant's dismissal to have been unfair."

Here, the Appellants' approach is to say that there was no breach of natural justice, nor was there any breach of the internal code. On the latter point, it is contended that at the meeting on 10 March provided for the preliminary hearing, which informed the employee in advance of the nature and seriousness of the matters to be discussed, and that that therefore, meant that the hearing on the 14th was within their rules and secondly, they say that the finding that the presence of Mr Owen was less than satisfactory is outside the rules set forth in Slater v Leicestershire Health Authority [1989] IRLR 16. In that case, the Court of Appeal held that:

"The Industrial Tribunal and the EAT had not erred in holding that the appellant staff nurse's dismissal was not rendered unfair by the fact that the manager who had carried out a preliminary investigation also conducted the disciplinary hearing and took the decision to dismiss.

It could not be held that because the person conducting the disciplinary hearing had conducted the investigation, he was unable to conduct a fair enquiry. Whilst it is a general principle that a person who holds an inquiry must be seen to be impartial, the rules of natural justice do not form an independent ground upon which a decision to dismiss may be attacked, although a breach will clearly be an important matter when an Industrial Tribunal considers the question raised in s.57(3) of the Employment Protection (Consolidation) Act."

Furthermore, the Appellants say that in any event, the Tribunal have just got it wrong, that the decision was not that alone of one individual, there was also a Mr Kinneavy who was present. Mr Kinneavy says that he took the decision although there is some evidence to the contrary on the Chairman's notes.

In relation to the finding concerning the presence of an investigator, it must always be a question for the Tribunal to decide if the degree of involvement of an investigator and in particular, whether the conclusions which the investigator has reached in advance, as a result of his investigations and his beliefs, goes so deep as to render such a person unfit to carry out the disciplinary hearing on the basis that he is not approaching the matter with an open mind. Whether that is a decision which this Tribunal would have reached upon the matters we have seen, is a different matter and is not a matter into which we ought to go, but the decision which the Tribunal took was one which they were entitled to take and in our view, it does not roam outside the lines laid down in Slater.

The Appellants go on to say that there are a number of matters upon which the Tribunal did make findings, where there is insufficient evidence, or no evidence at all to support it and therefore, that the decisions were perverse. Among other matters the Appellants say that the Tribunal failed to deal with the significance of the factors, such as the telephone calls, which came from a point close to where the Respondent admitted that he was and where the Respondent says he saw no one else.

It is also said the Respondent gave false information in relation to the visit to the betting shop and, at least at first, false information as to whether he knew a Mr Hockey and those matters, say the Appellants, led, with the phone calls and the fact that he was a fork lift truck driver, to the inevitable conclusion that he was involved in the theft.

In our view, the Tribunal took the correct approach in relation to understanding the position of each of those matters. Their approach was that in these matters there was some evidence upon which the Tribunal could rest their decision. Equally, it is our view that the Tribunal, who have seen all witnesses and were able to judge each one, have gone sufficiently far into considering the matters to reach the conclusions they did.

We bear in mind the words of the President of this Tribunal which are set forth in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440. The passage appears at page 443 paragraph 33. It reads as follows:

"Whenever an appeal is based upon the perversity ground, this Tribunal must be extremely cautious not to conclude that the decision of the Industrial Tribunal is flawed because the Appeal Tribunal would have reached a different conclusion on the evidence or thinks that another Industrial Tribunal would have reached a different conclusion on the evidence. An appeal should not be allowed on this ground simply because the Employment Appeal Tribunal disagrees with the Industrial Tribunal as to the justice of the result, the merits of the case or the interpretation of the facts. This Tribunal should only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is `irrational', `offends reason', `is certainly wrong' or `is very clearly wrong' or `must be wrong' or `is plainly wrong' or `is not a permissible option' or `is fundamentally wrong' or `is outrageous' or `makes absolutely no sense' or `flies in the face of properly informed logic'. This variety of phraseology is taken from a number of well-known cases which describe the circumstances in which this Tribunal (and higher courts) have characterised perversity. The result is that it is rare or exceptional for an appeal to succeed on the grounds of perversity. The reason why it is a heavy burden to discharge is that it has been recognised by those with wide experience and practical wisdom that there are many factual situations arising in the field of industrial relations, including sex discrimination, in which different conclusions may be reached by different tribunals, all within the realm of reasonableness. It is an area in which there may be no `right answer'. The consequence of this approach, also approved in cases of high authority, is that it is not appropriate or fruitful to subject the language of the decision of the Industrial Tribunal to `meticulous criticism' or `detailed analysis' or to trawl through it with a `fine-tooth comb'. What matters is the substance of the Tribunal's decision, looked at `broadly and fairly', to see if the reasons given for the decision are sufficiently expressed to inform the parties as to why they won or lost the case and to enable their advisers to identify an error of law that may have occurred in reaching the conclusion. ..."

In our view applying that approach, it seems to us clear that the argument of perversity here fails. The Tribunal seems to us to have complied with the approach set out in British Home Stores Ltd v Burchell [1978] IRLR 379, where it is said that:

"In a case where an employee is dismissed because the employer suspects or believes that he or she has committed an act of misconduct, in determining whether that dismissal is unfair an Industrial Tribunal has to decide whether the employer who discharged the employee on the ground of the misconduct in question entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.

This involves three elements. First, there must be established by the employer the fact of that belief; that the employer did believe it. Second, it must be shown that the employer had in his mind reasonable grounds upon which to sustain that belief. And, third, the employer at the stage at which he formed that belief on those grounds, must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case. ..."

In our view it is an application of that which has led the Tribunal to reach its conclusions and we therefore will dismiss this appeal. One matter has been raised with us by Mr Sefi.

For the avoidance of doubt we do not deal with the question of whether, at a hearing which will obviously later take place on remedies, any res judicata point may or may not exist. We consider that to do so would be quite wrong because first of all it would deprive one side or the other of a layer of appeal and secondly, we think that that is a matter which is entirely within the decision of the Tribunal when it comes to hear the remedies application.

For the reasons we have given this case is dismissed.