United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 965_95_2301

Appeal No. EAT/965/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23rd January 1996

HIS HONOUR JUDGE P CLARK

MS S R CORBY

MR R H PHIPPS

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HILLS (PATENTS) LTD          APPELLANTS

MR W LYNCH          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR BERNARD CORDELL

(Solicitor)

16a Dalcham Mews

London

NW3 5DB


 


JUDGE CLARK: This is an appeal by the employers against a unanimous decision of the Manchester Industrial Tribunal dated 28th July 1995 that the Respondent employee, Mr Lynch, had been unfairly dismissed by the Appellants.

The Respondent had been employed by the Appellant on the shopfloor at its Atherton factory. A fellow employee, Miss Marsh, brought a complaint of unfair dismissal and sex discrimination against the company. Miss Marsh's representative obtained a witness order against Mr Lynch, who duly attended the tribunal hearing and gave evidence. In the result that tribunal, which sat over three days ending on 1st December 1994, dismissed her complaints, preferring the employer's evidence to that of Miss Marsh and Mr Lynch.

The Appellant's Managing Director, Mr M Cordell, was unhappy about Mr Lynch's involvement in those proceedings. The way he put it in evidence to this Industrial Tribunal is recorded at paragraph 3 of the reasons in this way:

"I knew that I would have to do something about Billy Lynch, because I could no longer trust him to look after the interests of the Company and I was also anxious as to his relationship with other members of the workforce."

Accordingly, and at Mr Cordell's instigation, by letter dated 5th December 1994 the Respondent was summoned to a disciplinary hearing by the Branch Manager, Mr Atherton, the following day. The letter referred to the Appellant's belief that the duty of trust had been breached in that the Respondent had given perjured evidence at the Marsh Tribunal. Three particulars of the alleged perjury were given. It was also alleged that the Respondent had admitted to a manager, Mark Osman, that he had lied in his evidence to the Marsh Tribunal.

At the disciplinary hearing taken by Mr Cordell, Mr Lynch denied that he had deliberately misled the tribunal, or had told lies. Following the disciplinary hearing Mr Cordell dismissed the Respondent by letter dated 7th December 1994.

The grounds for dismissal are set out and analyzed by the Industrial Tribunal at paragraph 7 of the reasons:

"... Certain sections of the letter are significant. Firstly, in the first paragraph Mr Cordell said this:-

"It should be noted that the Tribunal held that in all cases where your evidence conflicted with that given by the witnesses which the Company presented it was found as a fact that our witnesses were telling the truth."

This was of course simply not true. The Tribunal had found that it preferred the evidence of the respondent's witnesses to that given by Miss Marsh and the applicant wherever there had been a conflict. There was not finding that the respondent's witnesses had been telling the truth or that, by inference, the applicant had been lying. Secondly, Mr Cordell said this:

"We discussed at great length the various charges and you denied perjury but you did concede that in a number of instances your evidence although the truth was not the whole truth and was thus deliberately misleading."

This assertion was also not true. Mr Cordell conceded in his evidence that the applicant had never during the disciplinary hearing or otherwise admitted that his evidence had been deliberately misleading. Finally Mr Cordell said this:-

"Yesterday we found as a fact you lied to the Industrial Tribunal and you subsequently admitted this."

Again this assertion was not correct. Mr Cordell admitted in his evidence that in fact the applicant had never admitted that he had lied to the Tribunal."

The Tribunal correctly directed itself as to the relevant law. First, it found that the reason for dismissal related to conduct under Section 57(2) of the Employment Protection (Consolidation) Act 1978, and then went on to consider the reasonableness test under Section 57(3). In so doing, it considered and applied the well-known three-fold Burchell test.

The tribunal was satisfied that Mr Cordell genuinely believed that the Respondent had committed perjury, and that he had carried out a reasonable investigation; however, the tribunal was not satisfied that he had reasonable grounds for that belief. Their reasoning for that conclusion is set out in detail at paragraphs 13-16 of the decision. In summary, they found that Mr Cordell had prejudged the matter; he did not carry out an objective assessment of the position, and, as appears from paragraph 7 of the tribunal's reasons his grounds for reaching the conclusion which he did were flawed. Taking care not to substitute their own views for that of the employer, the tribunal concluded that this employer had not acted reasonably and that the dismissal was unfair.

Against that finding the employer now appeals. This is a preliminary hearing held to determine whether or not the appeal raises any arguable point or points of law which ought to go to a full hearing before this appeal tribunal.

Mr Cordell advanced three arguments before us.

He submitted that in finding in paragraph 16 of the reasons that a reasonable employer would make a stringent examination of the facts before concluding that an employee had deliberately misled an Industrial Tribunal in a case involving that employer, the tribunal had placed too high an onus on the employer. We disagree. it was for the Industrial Tribunal to judge what a reasonable employer would do in these circumstances; its conclusion was one which, in our view, it was entitled to reach and we do not accept that the Industrial Tribunal imposed an artificial test of reasonableness.

Secondly, he argues that the finding that the employer did not have reasonable grounds for his belief that the Respondent had deliberately misled the Marsh Tribunal was perverse. He referred in particular to evidence given before the Marsh Tribunal about Miss Marsh's swearing and he says that it was a perverse finding on the part of the Industrial Tribunal to conclude that because Mr Lynch had said before the Marsh Tribunal that he had not heard Miss Marsh swear, that it was wrong to conclude that the employer's conclusion about that was unreasonable. We remind ourselves of the high hurdle presented to Appellants seeking to show that a tribunal finding is perverse. We do not think that this Appellant has surmounted that hurdle on this aspect of the appeal. We cannot find any flaw in the tribunal's approach either in paragraph 7 or in paragraph 14 of their reasons.

Finally, it is said that the tribunal applied the wrong test to the employer's actions. The real reason for dismissal, it is said, was breach of the duty of trust and confidence necessary between employer and employee. That was some other substantial reason for dismissal; the reason was not conduct as the tribunal found. First, we cannot agree that the tribunal was wrong to characterise this as a conduct case, but even if it was, provided the label attached to the reason is one falling within Section 57(1)(b) or (2) of Employment Protection (Consolidation) Act 1978 that is sufficient to take the employer to the next state in the tribunal's enquiry, namely the test of reasonableness under Section 57(3). That is what happened in this case.

In all the circumstances we are unable to discern any arguable point of law in this appeal and consequently it must be dismissed.