United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR GIFFIN (of Counsel) ELAAS


 


MR JUSTICE KIRKWOOD: This is the preliminary hearing in an appeal by an employee against a finding by an Industrial Tribunal at Birmingham sitting on 9th December 1996 that his dismissal was fair.

We are grateful to Mr Giffin for presenting the employee's case to us today.

The applicant, Mr Moss, was employed by the PJH Group Ltd, a national distribution company dealing with kitchen, bathroom and bedroom appliances. One of its trading centres was at Smethwick. Mr Moss was employed from June 1990 as a driver and dismissed on 29th May 1996.

The procedure for distribution was that when a customer's order was to be despatched for delivery, a despatch or delivery note was prepared in triplicate. One copy when to the warehouse to pick out the item to be delivered, the other two parts were used to ensure that the correct goods were loaded on to the lorry. On delivery one copy was left with the customer, the other with the customer's signature acknowledging delivery was returned to the company's office. No item should therefore be loaded on to a lorry accept against a despatch note.

It was the duty of the lorry's driver to check what items had to be delivered to which customers. The driver would generally see to the loading in such manner as to ensure the most convenient unloading to customers in sequence of delivery calls. In other words, last off first on. It was the driver's duty to see that the load was safely and properly stowed.

The loading was done by one or two loaders and another third or fourth employee was a checker. Once loaded, the lorry was locked overnight. A form giving the details of the driver, the loader or loaders and the checker was signed by each.

On 21st May 1996, Mr Moss's lorry was loaded. He was present throughout the loading. It was not a full load. Once loaded the van or lorry was locked. Mr Moss kept one key and the other went to an unlocked cabinet in the office.

Next day Mr Moss was unwell. He was not fit for work. A relief driver, Mr Singh took the lorry or van out and made the deliveries. When he had finished them there was still in the van a Stoves gas hob, worth some £250. He took it back to the depot and reported the fact to the transport manager. The transport manager in turn reported it to the assistant manager, Mr Hevican.

Mr Hevican checked all the delivery notes for deliveries by all the vehicles on 22nd May 1996. There was no reference anywhere to the Stoves gas hob. A store check showed that with the unit returned by Mr Singh there was no shortage, but of course if it had not been returned there would have been a shortage of one.

On 24th May, Mr Hevican spoke to Mr Moss about it. He did not think that he had got a satisfactory explanation and suspended Mr Moss. The Industrial Tribunal had a note of that disciplinary meeting.

By coincidence on the same day, the respondent company heard from one or customers who wished to remain anonymous, that Mr Moss and another employee had been dealing in an unauthorised way with the company's goods. The tribunal noted that the company had a continuing problem with both internal and external thefts.

At a disciplinary meeting on 29th May 1996, Mr Moss denied improper transactions with the company's goods. His principal concern seemed to be what action was taken in relation to the other employees who had loaded the van with him. The result of that meeting was that Mr Hevican dismissed Mr Moss. Mr Moss's appeal was unsuccessful. The Industrial Tribunal had before it notes both of 29th May 1996 disciplinary meeting and of the appeal hearing on 19th June 1996.

Before the tribunal, Mr Moss offered an explanation that he had been told that the gas hob had been loaded in error, that it was a mistake. He had not mentioned that before, and in short, the tribunal did not believe Mr Moss about it.

Save as to one possible point, the tribunal directed itself correctly about the law. It found that the employer had established a reason for dismissal and that it related to conduct. The Industrial Tribunal found that both in its investigation and its conclusion, the employer had acted reasonably. The employer had acted reasonably also in dealing differently with the other three employees concerned in the loading. One had left and the employer decided that the circumstances of the cases of the other two were less clear and it would have been unfair to dismiss them. The tribunal found Mr Moss's dismissal, however, to have been fair.

To succeed on an appeal, Mr Moss would need to demonstrate to an Employment Appeal Tribunal that the Industrial Tribunal had made a material misdirection of itself as to the law, or that it had made perverse findings of fact, that is to say findings of fact that were not open to it upon the material available.

In his own Notice of Appeal, Mr Moss says that this was indeed a decision which no reasonable tribunal could have reached. The reasons for that were that the goods had been loaded by other employees; that the loads had been checked by the employer's own checker who was an employee; and that Mr Moss had not been at work when the goods were discovered on the vehicle. Those were all points specifically before the Industrial Tribunal, and indeed reflect findings of fact by the tribunal. Mr Moss could not succeed on the basis of those contentions.

Mr Giffin who comes to represent Mr Moss this morning, has however put before us another matter and has not sort to argue the points that originally appeared in the Notice of Appeal.

The first point goes to the finding of the tribunal that on 24th May 1996 the company had been informed by two customers, who wished to remain anonymous, that Mr Moss and another employee had been dealing in an unauthorised manner with the company's goods. And later in the extended reasons, the tribunal said:

"4.16 The respondent accepted that the information given about the alleged involvement of the applicant in other wrong doing based on information given by two customers had been a factor it had taken into account when determining the final sanction against the applicant."

Mr Giffin draws our attention to a passage in Harvey at page D912, which refers to the problem for employers acting on information from an informer, and sets out the sort of considerations that an employer should have in mind in approaching that sort of evidence. They are the guidelines given Wood J in the Employment Appeal Tribunal in Linfood Cash and Carry Ltd v Thomson [1989] IRLR 235, and those guidelines go to the sort of processes through which an employer might go, depending upon the particular circumstances of the case, in the process of making his enquiries to ascertain the information from the informer and its reliability. To the extent that this point was argued, (and if it was not, it is a new point not ordinarily open to argument on appeal), or at least in the mind of the Industrial Tribunal, the tribunal made the specific finding that the respondent had carried out as much investigation into the matter as was reasonable in all the circumstances. There is nothing in the argument put forward by Mr Giffin, on behalf of Mr Moss, that begins to impugn that finding by the tribunal as to reasonableness of investigation.

Mr Giffin then points to a subsidiary argument that might be open to Mr Moss, which appears from paragraph 7.3 of the extended reasons, where the tribunal say:

"The applicant was present when the vehicle was loaded and must have been present when the Stoves Heritage hob unit was placed on it."

The argument Mr Giffin tenders, is really that that is a conclusion that is not warranted by the evidence.

The tribunal set out in its extended reasons the procedure adopted for the process of loading, of which I have given earlier in this judgment a mere summary. In reciting the process of issue of despatch notes and of loading and so on, the tribunal say that:

"It was for the driver of the vehicle delivering to customers to check what items had to be delivered to which customer and the driver would usually arrange the items on his vehicle so as to be most conveniently available when he arrived at the customer's premises in terms of taking off the product and delivering to the customer. It was the driver's responsibility to ensure that items were stacked safely and properly on the vehicle."

It seems to us looking at that whole passage, that the tribunal is addressing itself, and clearly addressing itself, to the loading process. So that the words "for the driver of the vehicle delivering to customers to check what items had to be delivered to which customer" are words relating to the process of loading the lorry. Since that is, to our mind, the plain way of reading the extended reasons of the tribunal, the point that Mr Giffin seeks to make in respect of paragraph 7.3 really does not stand up, and we find that there is nothing in it.

In the result, and for those reasons, we do not think that there is a case properly arguable on a full hearing before the Employment Appeal Tribunal, so that the appeal will be dismissed at this stage.