United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR L G WILDING (Representative) Personnel Management Services Kelly's Eye Chapel Hill Ashover Derbys S45 OAT
For the Respondent	MR O'BRIEN (of Counsel)


 


JUDGE JOHN BYRT QC: This is an appeal against the decision of an Industrial Tribunal sitting at Southampton. Its decision was promulgated on 5 August 1996 and by that decision it held that the employee, Mr Wells, had been unfairly dismissed. It is against that decision that the employers appeal.

The facts as found by the Industrial Tribunal are as follows. Mr Wells was a wood machinist employed by the Respondents who were a firm of builders merchants in Petersfield. He was dismissed on 15 November 1995, following disciplinary proceedings. The charge of which he was found guilty was that he had knowingly sold goods to a customer less than the correct price for the quantity supplied.

At the disciplinary proceedings there had been three charges against him, but the matter went to appeal and at that stage a director, Mr Mitton who heard the appeal reduced the findings to the one charge which I have just read out.

The evidence against Mr Wells was obtained by some test purchases which were made by a private investigator, a Mr Jenkins. Mr Wells served him. He sought to purchase 11 panels of plywood. Mr Wells completed a tally sheet showing that the panels had been obtained from one sheet of plywood measuring 8 ft by 4 ft. The employers contended that only 10 panels could be obtained from one sheet and the 11th panel therefore, had to come from somewhere else.

Mr Jenkins' evidence was that some panels were cut from an off-cut, but the rest came from a complete sheet of plywood which was obtained by Mr Wells from a store somewhere up the yard, well away from the machine shop where Mr Wells was working. In consequence, the inference is that Mr Wells had to know that he had supplied these people with more than the one sheet of plywood.

Mr Wells in evidence said that he first of all thought he had only supplied Mr Jenkins with 10 panels. They had been taken off the machine, as they were cut, by his apprentice. He had relied on his count and thought that only 10 had been sold to Mr Jenkins, but he says that, if in fact 11 were sold to Mr Jenkins he had obviously been mistaken, quite innocently. He then went on to say (and this is the second part of his evidence) that the panels came from two off-cuts which together approximated the equivalent of one complete sheet and that these two off-cuts came from the machine shop in which he worked. He never went to the store to get out a new complete plywood sheet. So there was a complete conflict of evidence between the evidence of Mr Wells and that of Mr Jenkins.

When Mr Mitton came to conduct his appeal hearing, he had to make an assessment of the credibility of these two witnesses. Having heard their evidence, he expressed a preference for the evidence of Mr Jenkins and, accordingly, found against Mr Wells.

The Industrial Tribunal heard evidence of those same two witnesses, as well as from other people. Their findings as to the credibility of Mr Wells and Mr Jenkins is summed up in a passage in paragraph 5(b) of their reasons. They say, and I quote:

"... Having observed both witnesses give their evidence the Tribunal preferred the evidence of the applicant on the point and rejected the evidence of Mr Jenkins."

They then went on and concluded their findings in paragraph 6(e) by stating, and I quote:

"there was no evidence from which dishonesty by the applicant could reasonably be inferred by the respondent, upon a proper investigation into the facts."

Mr Wilding, who has appeared on behalf of the Respondents, says that there is every indication here that the Industrial Tribunal substituted their own view as to the credibility of the two crucial witnesses in this case, substituted their own view for that of Mr Mitton who also had the opportunity of assessing these witnesses when he heard the appeal. And in that they did that, Mr Wilding says, they failed to apply the test set out in the case of British Home Stores Limited v Burchell [1980] ICR 303.

Mr O'Brien, for Mr Wells, says that the Industrial Tribunal came to clear findings of fact. Essentially, it meant that they exonerated Mr Wells of all dishonesty, but it was implicit in those findings that they found Mr Mitton's belief in the evidence of Mr Jenkins was unreasonable. He elaborated his argument by saying that, it is not incumbent upon a Tribunal to set out all the detailed facts relating to their findings. It is sufficient if they set out just sufficient to demonstrate how they have come to their conclusion.

Our findings in this matter are that the Industrial Tribunal set themselves the task of assessing the honesty or otherwise of Mr Wells. This is not the task of the Industrial Tribunal. The Tribunal has a reviewing role, reviewing the reasonableness or otherwise of the employer's conduct, at all stages of the process which led them to the dismissal of the employee. The focal point of their review in this particular case should have been to ask themselves the question whether Mr Mitton's assessment of the credibility of two principal witnesses was unreasonable. Did he come to a decision which no reasonable employer, having heard the evidence, could have come to? If they did ask that question they certainly do not say so in their reasons and if they did, it is argued that it was incumbent upon them to spell out, not their preferences for one witness as opposed to the other, but why they thought Mr Mitton's assessment was unreasonable.

Accordingly, we feel that we must set aside the decision of the Tribunal and remit the case to be heard again, before a differently constituted Tribunal. We therefore allow the appeal and make that direction.