United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR CARR (of Counsel) Burges Salmon Solicitors Narrow Quay House Narrow Quay Bristol BS1 4AH
For the Respondent	MR COOKE (of Counsel) Jacklyn Dawson & Mayrick Williams Solicitors Equity Chambers John Frost Square Newport Gwent NP9 1PW


 


JUDGE PUGSLEY: This is an appeal from a decision of the Industrial Tribunal sitting at Cardiff that the applicant was unfairly dismissed. The applicant, the respondent in this appeal, was employed by the Post Office in the Parcel Force division as a delivery van driver at the Newport depot. His employment commenced on 11th July 1988 and he was dismissed on 17th November 1995.

Part of the duties of the applicant had been to complete a manifest (a list of deliveries). Each delivery driver was given a target number of deliveries or drops depending upon the particular route and each delivery driver received a flat rate salary and in addition bonus payments for all drops in excess of the targets. The bonus payments were calculated from the manifest which was completed by the driver.

In the Autumn of 1995 Parcel Force had concerns about the possibility that drivers were incorrectly completing the numbered drops and spot-checks were carried out. Instructions were reissued as to how the form should be filled in.

On 27th October 1995, following a random check, the applicant was seen by a Mr Shields, the Territorial Manager at a fact-finding interview to answer questions about irregularities found on his delivery manifest for 24th and 26th October 1995. He was suspended, and in due course a disciplinary hearing took place on 10th November 1995 conducted by a Mrs Lee. After making various enquiries, Mrs Lee decided to dismiss the applicant and he was informed of this by letter dated 16th November 1995. The applicant appealed and that appeal was heard by a Mr Cole. He dismissed the appeal and upheld the decision to dismiss.

The heart of the tribunal's decision is set out at paragraph 12 and 13 of their decision and we repeat the paragraphs in their entirety.

"12. By Section 57(1) of the Employment Protection (Consolidation) Act 1978 it is for the employer to show the reason for the dismissal and that it was a substantial reason such as one relating to conduct with sub-section (2)(b). Once that has been done the Tribunal has to enquire - there being no burden of proof on either party - whether in treating that as a sufficient reason to dismiss the employers acted reasonably or unreasonably. It is not for us to decide whether or not the applicant was guilty of manifest fraud. What the Tribunal has to decide is whether the officer who dismissed and the Appeals Officer who rejected the appeal reached an honest conclusion for which they had reasonable grounds following a sufficient enquiry. The test is set out in the case of British Homes Stores Ltd v. Burchell [1980] ICR 303. The Tribunal finds that the respondents did have a genuine belief the applicant had committed manifest fraud but that there were no reasonable grounds for the belief as the enquiry was not sufficient or reasonable. The Tribunal therefore finds the applicant was unfairly dismissed.

13. The Tribunal finds that the evidence did not support the contention that either there was misconduct and/or whether the tests in British Homes Stores Ltd v. Burchell were satisfied, therefore in relation to s.57(1) 57(2) the Tribunal finds that this dismissal was substantially unfair. The Tribunal none the less for the sake of completeness has considered the procedural aspects of this dismissal having regard to s.57(3) of the Employment Protection (Consolidation) Act 1978 and having particular regard to the size and administrative resources of this large respondent together with the equity and substantial merits of the case. The Tribunal finds that procedurally this dismissal was unfair for amongst other reasons:

(1) Mrs Lee failing to take written statements from those person she saw in connection with the investigation

(2) Mrs Lee failing to give the applicant the opportunity at a further hearing to hear the result of her further investigations and to respond

(3) Mr Cole also failing to give the applicant the opportunity to comment or refute the new findings of his investigations

(4) Mr Cole failing to communicate promptly to the applicant the result of the appeal hearing."

The main thrust of the appellant's appeal is that in those two paragraphs the tribunal have so muddled the test to be applied that this tribunal cannot be satisfied that the tribunal were applying the correct test.

No substantial criticism is made (of paragraph 12) when the tribunal correctly states that the burden on the employer is to show the reason for the dismissal and that that was a reason within the ambit of s.57(2). Moreover, the tribunal correctly go on to say that there is no burden of proof on either party in deciding whether in treating that as a sufficient reason to dismiss the employers acted reasonably or unreasonably. However, what is contended is that. in paragraph 13, the tribunal reveal a fundamental misunderstanding as to their role and the tests they should apply. We have read and re-read the sentence:

"13 The Tribunal finds that the evidence did not support the contention that either there was misconduct and/or whether the tests in British Homes Stores Ltd v. Burchell were satisfied, therefore in relation to s.57(1) 57(2) the Tribunal finds that this dismissal was substantially unfair. The Tribunal none the less for the sake of completeness has considered the procedural aspects of this dismissal having regard to s.57(3) of the Employment Protection (Consolidation) Act 1978 and having particular regard to the size and administrative resources of this large respondent together with equity and the substantial merits of the case. ..."

We have struggled to see whether there is any explanation, by way of some typographical error or possibly some mixing of sentences or omissions, by which we can give any meaning to that paragraph. We have not found any such explanation.

The suggestion in paragraph 13 that the tribunal finds that the evidence did not support the contention that either there was misconduct and/or whether the tests in British Homes Stores Ltd v Burchell were satisfied, suggests that the tribunal may have been labouring under a misapprehension as to what their duty was. It is not for a tribunal to sit like some quasi magistrates court to try an employee for misconduct. Where an employer has discharged the burden imposed by s.57(1) and 57(2) of the 1978 Act, as it then was, it is for the tribunal to consider, there being a neutral burden of proof, whether the decision to dismiss was within the range of reasonable responses of a reasonable employer having regard to the criteria of s.57(3).

Subsumed within the criteria of s.57(3) are a number of issues such as:

(a) whether the employer had reasonable grounds for the formation of the belief that the employee had been guilty of misconduct after making such enquiries as were appropriate in the circumstance;

(b) whether the employer had given the employee details of the allegations made against him with sufficient particularity so as to enable the employee to deal with the case against him;

(c) whether the employer had allowed the employee a proper and fair opportunity to give his account of this matter;

(d) whether the decision to dismiss was within the band of reasonable responses which a reasonable employer.

It is not suggested that such a list is a comprehensive summary of all the issues which can arise. The Court of Appeal and the Employment Appeal Tribunal have repeatedly deprecated the tendency to elevate cases which do no more than set out guidelines of good industrial practice in the context of a particular factual situation as laying down rules of law to be applied in all cases irrespective of the factual background.

Mr Cooke, who has appeared for the respondent, has mounted a spirited defence of the decision. He has made the point that many of the criticisms made of the employer in the decision are apt and germane findings which are within the proper province of a tribunal in determining the issue of unfair dismissal. He points out that there is a finding in paragraph 8 of the decision that:

"... given the very serious nature of the allegations a reasonable employer would have given the employee in these circumstances an opportunity to hear the results of the further investigation and to respond. ..."

which foreshadows the conclusions the tribunal reached . Moreover, he makes the very proper point that in this case Mr Carr, who appears for the appellant, has spent a considerable amount of time referring us to those matters in the bundles which could sustain the employer's belief in the employee's misconduct; but that the tribunal had the opportunity of hearing such witnesses as were called and making their own evaluation of the evidence.

In many respects, this a considered and careful decision. Paragraph 13 however contains a clear misdirection of law. We have been unable to unearth any explanation which would enable us to excise it from the decision and say that, although the Industrial Tribunal has set out the wrong test, taking the decision as a whole we were satisfied that the tribunal had applied the correct test in reaching their decision. There are certain passages which suggest that the tribunal were mindful that their task was not to ask whether they would have dismissed the employee but whether the dismissal was a permissible option for the reasonable employer.

We have not considered the issue of whether the tribunal has substituted its view for that of the reasonable employer as a discrete ground of appeal. In the final analysis, we cannot ignore paragraph 13 of the decision; and therefore for the reasons we have given we cannot be sure that the tribunal has identified and applied the correct test. We accept that this is not a case in which we could reverse the decision of the Industrial tribunal and substitute a finding that the dismissal was fair. We wish to make it clear that the fact that we are allowing this appeal should not in any way be taken as any indication that we have formed any view to Mr Carr's arguments as to the strength of the appellant's case on the merits of the case.

We have come to the view that this case must be remitted back to an Industrial Tribunal for a rehearing. We have considered the arguments as to whether this should be to the same or a differently constituted tribunal. In all the circumstances of this case we have come to the view that because the decision is fundamentally flawed, so that it is not possible to say whether the tribunal has applied the correct test, justice requires that the case be remitted to a differently constituted tribunal to rehear the matter.