United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr T DAVIES (Managing Director) Central Autopoint Ltd Anne Street Corby Northants NN17 1SW


 


MR JUSTICE LINDSAY: We have before us by way of a preliminary hearing the appeal of Central Autopoint Ltd which had been Respondent to a claim by a former employee, Mr A E Jacobs.

The matter came before the Industrial Tribunal on 1 July 1997 and the extended reasons were promulgated on 10 July 1997.

The unanimous decision of the Tribunal was that the Applicant, Mr Jacobs, was unfairly dismissed and the Tribunal went on to quantify an award and it emerged at £6,029.

Today, we have heard Mr Davies, the Managing Director, of Central Autopoint, appearing on the Company's behalf.

Central Autopoint is a small business repairing cars and carrying out MOT tests. Mr Jacobs was a qualified MOT tester who worked for Central Autopoint. On 30 January he had taken into the firm's premises his mother-in-law's car for a MOT test and, during the work that was done on the car, brake union pipes and small length of brake pipe were used, they being items which belonged to Central Autopoint Ltd. He did not account immediately for the £20 which his mother-in-law gave him in return for the MOT test. There was then an interview between Mr Davies and Mr Jacobs and, in the course of that, Mr Jacobs was summarily dismissed.

We have to remind ourselves of the test in the well-known British Home Stores Ltd v Burchell [1980] ICR 303 case because this is a case for dismissal for misconduct and the first question one needs to ask is whether the employer, Central Autopoint, believed the employee guilty of misconduct. I think the answer to that can only be "yes" and the Tribunal so held. In their paragraph 7 they said:

"We accept the reason given by the respondent as the reason for the applicant's dismissal. The respondent dismissed the applicant because he took the view that the applicant was stealing from him or being fraudulent in not paying for the MOT."

The second question that the Burchell case gives rise to is was there such an investigation of the misconduct as in all circumstances was reasonable? And here the Tribunal in their paragraph 8 said this:

"The first matter we looked at was the question of the procedure followed. We take account of the small size of the respondent business, but even taking that into account there are series defects in the procedure followed. There was no warning given to the applicant about what the dismissal meeting was to cover. When he went in he did not know the allegations he was to face nor did he know that it was to be a disciplinary meeting or that it was being tape recorded. He was given no chance to have anyone with him to assist him at such an important time. Very importantly, Mr Davies told us that he made the decision to dismiss there and then during the discussion. He accepts at one stage he became angry and we consider that there was a serious defect in the procedure by making the decision there and then without giving himself some time to consider rationally the explanation given. For all those reasons the procedure followed was unfair."

So the Industrial Tribunal was not satisfied that there was such an investigation as in all the circumstances was reasonable.

It is not for us to re-open the facts on that issue. We ask ourselves only whether there is an error of law in that part of their conclusion and an error of law in this circumstance involves us asking whether the case is such that no reasonable Industrial Tribunal properly instructing itself could have come to the conclusion that I have just read in paragraph 8. We find it quite impossible to come to that conclusion.

The third question the Burchell case gives rise to is whether the employer had reasonable grounds for his belief in the misconduct which he was intending to rely upon, being reasons which still subsisted after the investigation. Here the Industrial Tribunal held in their paragraph 9 that:

"Everything that had been done by the applicant was done openly. The respondent knew that he was working on his mother-in-law's car, had records to show that an MOT was carried out and Mr Davies was himself directly responsible for supervising the garage and for the paperwork and money taken in. When the point was put to the applicant he immediately gave an explanation, which was not inconsistent with the facts known to Mr Davies. We are quite satisfied from the information we have been given that that explanation was never given any consideration at all."

What that comes to, it seems to us, is that once the investigation, inadequate as it was, was concluded, the employer no longer had reasonable grounds for the belief, which he had had at the outset, that there had been such gross misconduct as to justify summary dismissal.

The Industrial Tribunal also moves on, having in effect discussed the three points I have mentioned as arising from the Burchell case (although they do not cite the Burchell case) to the ancillary question, whether the dismissal was a response which was open to a reasonable employer in all the circumstances. In paragraph 10 they say that:

"We consider that any reasonable employer would not have seen that [the findings of fact that they have made] as a justification for dismissing the applicant."

Mr. Davies feels strongly that the Industrial Tribunal was in effect condoning theft and condoning deceit. We do not think the decision can be read in that way. Even where deceit or theft is suspected, there are procedures which need to be followed and the Industrial Tribunal held here that they were not properly worked through. We emphasize it is not for us to listen to differences in the facts as they would have wished to have been found by Mr Davies and the facts as found by the Industrial Tribunal. That is a matter exclusively for them as the industrial jury.

Mr Davies also takes points on the quantification of the award in Mr Jacob's favour. We do not have to say that we would have come to the same conclusion and it is observable that the figure would seem to be on the generous side but it is not enough for us to be left with sentiments of that kind. If we are to disturb the findings we have to find some error of law and we have not been able to find error of law in the computation which the Industrial Tribunal arrived at.

Accordingly, neither in the basic award conclusion that the Applicant was unfairly dismissed nor in the financial consequences of that do we find any error of law and, accordingly, we dismiss the appeal.