United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C MARDNER (Representative) Fair Representation Group 143 Blithdale Road Abbey Wood London SE2 9QE
For the Respondents	MR P ROSE (of Counsel) Ms P Pike The Legal Department The Boots Company PLC 1 Thorne Road West Nottingham NG2 3AA


 


MR JUSTICE MORISON (PRESIDENT): This hearing is to be treated as the full hearing of an appeal against a decision of an Industrial Tribunal held at London (North) on 17th January 1995 whereby the applicant's complaint of unfair dismissal was unanimously dismissed.

The Industrial Tribunal's decision is in succinct, possibly thin, form and I can take the facts briefly from it.

The reason for the dismissal as set out in the letter of dismissal and as referred to in the respondent's IT3, was a suspicion or belief held by the employers, Boots, that the employee had been guilty of thieving from them. The basis on which they held that belief relates to the facts set out essentially in paragraphs 2, 3 and 4 of the decision.

On Christmas Eve in 1992, at the Boots warehouse in Bermondsey a security guard saw two men loading boxes into two cars, one of which was a white Ford Cabriolet identified by him as a XR3i version. He wrote on his hand the registration number of the Cabriolet car. Searches revealed that that was indeed the registration number of the applicant's car, and the applicant's car was the same colour and the same make. When the security guard saw what was going on he approached the cars which speedily, drove off, arousing his suspicions. He had seen them loading cardboard boxes into the two cars.

The applicant was interviewed about this by his employers. It was his case that he was not at those premises that night, but rather that he was in Birmingham at the time and had not been to Bermondsey. Therefore this was a case of mistaken identity. It should be noted that the police were called but found no sign of a break-in, and because of the way the stock records were kept, apparently Boots were unable to prove that any specific stock had been taken from their warehouse.

At the hearing before the Industrial Tribunal the respondents called their evidence to prove the facts to which I have referred which were accepted by the tribunal, and the employee called an alibi witness and put in a witness statement from another alibi witness who was unable to be present at the hearing because he had missed his way in London traffic.

The tribunal rejected the evidence of the applicant, and concluded that the employers had reasonable grounds for the belief that he had been stealing from Boots, and that they had carried out a proper investigation and had acted within the guidelines of Burchell v British Home Stores.

That decision was contained in a written decision dated 6th February 1995 which was nearly two years after the employee had presented his application to the Industrial Tribunal. There was an appeal lodged against that decision. During the course of the appeal it became plain to the Employment Appeal Tribunal that the file had gone missing from the Industrial Tribunal and there was further delay. The matter first came before the Employment Appeal Tribunal in November 1996 as a preliminary hearing before me, and I considered that it would be helpful to hear what the respondent employers had to say on the point and the matter came back before us today, and as I say, by consent, this is to be treated as though it were the full hearing of the appeal.

In what we would like to say is an interesting and compelling submission made by Mr Mardner on the appellant's behalf, he says that there was no evidence to establish that any goods had been stolen from Boots. He says that an employer cannot have reasonable grounds for believing that a theft has taken place and employee has been involved in it unless they can first prove that there has been a theft. He relies in particular on a decision of House of Lords in the case of Smith v City of Glasgow District Council [1987] IRLR 326 where at page 329, paragraph 15 the Lord Chancellor in his speech said this:

"... As a matter of law a reason could not reasonably be treated as sufficient reason for dismissing Mr Smith when it had not been established as true nor had it been established that there were reasonable grounds upon which the special committee could have concluded that it was true. ..."

At paragraph 16 he said this:

"... As the Employment Appeal Tribunal itself has pointed out, conclusion 1(b) was one of the most serious of the allegations against Mr Smith. That allegation must, in my opinion, have formed, at the very least, an important part of the reason which the special committee had treated as sufficient for dismissing Mr Smith and which the Industrial Tribunal in its turn has accepted as justifying the dismissal of Mr Smith by the council. To accept as a reasonably sufficient reason for dismissal a reason which, at least, in respect of an important part, was neither established in fact nor believed to be true on reasonable grounds is, in my opinion, an error of law. The Industrial Tribunal fell into this error in this case."

What Mr Mardner says is that it was an essential prerequisite to a belief by Boots that the employee had been stealing their goods that they should prove that a theft has taken place. During the course of argument a number of possibilities were canvassed, all of which would have been consistent with the employee having been on the site, albeit not engaged in stealing from Boots.

However, we are satisfied that that question, namely whether the employers could reasonably believe that the employee had been engaged in theft when no theft could expressly be established by records, was considered by the Industrial Tribunal at the hearing. There is a reference to the question as to whether any theft had taken place in paragraph 7 of the decision. It is not possible to say that the Industrial Tribunal have erred in law in the way in which they directed themselves to the issues which they had to determine.

It seems to us that Mr Mardner's primary submission cannot be accepted in the stark form in which was put before us. We think that the decision in Smith in fact indicates that it may be possible to establish reasonable grounds for believing that a theft had taken place even where it is not possible by documentary evidence to prove that any theft had occurred. But of course an Industrial Tribunal in a case such as this should be wary of accepting as grounds for reasonable belief that a theft had taken place, reasons which are put forward by a large employer who is unable by adequate records to prove that a theft had taken place. It seems to us that where a large employer is saying that an employee has been suspected of theft, it will first be the task of the tribunal to see whether there is factual evidence to support that contention. We do not rule out the possibility that as here, there might be compelling reasons for believing that theft had taken place even where there was no direct evidence that in fact a theft had occurred. But, as we say, it is likely to be rare cases where the tribunal will be induced to accept that line of argument put forward by a large employer where there is every reason to believe that such employer running a warehouse would have records which would enable them to know whether stock was moving out of the door in a way which was unlawful.

It seems to us, that it was open to the Industrial Tribunal, on the facts of this case, to conclude that the employers reasonably believed that the applicant had been involved in theft. Despite the fact that the decision is to be described as succinct or thin, we think that they have done enough to indicate to the parties in sensible form, why it was that they have rejected the complaint of unfair dismissal. The circumstantial evidence here was strong against the applicant. The two men on the site were behaving suspiciously; they were seen to be loading boxes into their cars. There was compelling evidence that the employee was one of those two men, because his car was involved, and his car was correctly identified by its registration plate by the guard, if the guard's evidence was to be believed. The tribunal were also given evidence that stock had been going out of the door of the warehouse unlawfully by employees taking it out and leaving it to be collected by vehicles later on. In those circumstances we consider that the Industrial Tribunal's decision cannot be faulted. The employers were entitled on the material before them to conclude that the employee had been doing which they suspected him of doing, and they acted reasonably in the circumstances.

It seems to us, for those reasons, that this appeal must be dismissed, although we do consider that the tribunal decision would have been the better if it had been slightly more full.