United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR M DUGGAN (of Counsel) Boker Aeroclean Ltd Unit D2 Tamian Way Off Green Lane Hounslow Middlesex TW4 6BL


 


JUDGE PETER CLARK: In this appeal the employer, Boker Aeroclean Ltd appeals against decisions of the London (North) Industrial Tribunal as to both liability and remedies in these unfair dismissal complaints brought by its former employees, Messrs Garnish and Munkley, the respondents to this appeal.

The liability decision was reached following a hearing held on 29th October 1996. Extended reasons for that decision are dated 11th March 1997.

The remedies hearing took place on 3rd December 1996 and summary reasons, treated by the Chairman as extended reasons for the remedies decision, are also dated 11th March 1997.

The Notice of Appeal is dated 26th March 1997.

The liability decision

The facts

The appellant is in the business of cleaning aircraft at Heathrow airport. Mr Munkley was employed as a cleaner driver; Mr Garnish was a cleaner. Both worked on the evening shift which finished at 10.30 p.m.

Between 6-8 p.m. on Tuesday, 16th April 1996 the shift co-ordinator, Mrs Goddard, received £500 in cash which she placed in the office safe. When the safe was opened the following morning, the money was missing. There was no sign of forced entry.

Mr Boker, the managing director carried out an investigation. The only persons who had a key to the safe were the shift co-ordinators and managers. He concluded that the safe was under supervision until 10.30 p.m. Mr Wingrove, the shift manager, discovered that his keys, including the safe key, were missing from his jacket which he usually left hanging up in his office.

On 23rd April Mr Boker asked all his drivers, including Mr Munkley, whether they had returned "airside", access to which is gained by a swipe card, on 16th April. All denied that they had.

On 26th April Mr Boker received a print-out of the security record which showed that Messrs Munkley and Garnish had returned airside at 11.12 p.m. on 16th April. No other company employees had done so.

Mr Boker summoned both men to see him. He did not inform them of the purpose of the interview; nor did he offer them the opportunity to obtain representation as provided for in the company's disciplinary procedure.

He first asked Mr Munkley if he had taken the £500, and Mr Munkley denied it. Mr Boker challenged him with the security record and put it to Mr Munkley that he lied when he was questioned along with the other drivers on 23rd April. Mr Munkley said that he and Mr Garnish had come back, because Mr Garnish had left his keys in his locker. He said he thought the question to the drivers related to the Monday night which was 15th April.

Mr Boker then put to Mr Garnish that he had thought he had taken the money in the light of the computer print out and said he did not believe the story about his keys. Mr Garnish denied the theft and mentioned that the lights had been on and the doors open when he had re-entered the premises on that evening.

Following those meetings, Mr Boker spoke to another employee, Mrs Wakefield who had been driven home by Mr Munkley with Mr Garnish on the night of 16th April. She told him that there had been no mention of keys between Mr Garnish and Mr Munkley before they dropped her off. Mr Boker then summoned both men to see him again, and dismissed them. The tribunal point out that they were not told the potential outcome of the interview; were not offered the right to be represented; were not told of there right of appeal; and indeed, given no written notification of their dismissal.

During the interviews on 26th April, the respondents did not tell Mr Boker about the fact that they shared a locker, nor that Mr Garnish's keys had been locked inside the locker which had a push type lock. They did not tell him that Mr Munkley had remained outside the building whilst Mr Garnish had gone inside to recover his keys. They did not say that there had been a number of construction workers about in the vicinity of the building. Mr Boker did not put to them what he had been told by Mr Wingrove and by Mrs Wakefield. They were not asked why the keys had not been mentioned whilst Mrs Wakefield was in the vehicle, and if asked, according to their evidence before the tribunal, they would have pointed out that Mr Garnish had not noticed that he had forgotten his keys until after Mrs Wakefield got out of the car.

Mr Garnish, only, appealed. His appeal was heard by Mr Boker, who had dismissed him. The appeal failed.

The Industrial Tribunal decision

The tribunal found:

(1) that the reason for dismissal related to the respondents' conduct.

(2) Mr Boker had a firm and genuine belief that both respondents had been involved in the theft.

(3) the appellant had reasonable grounds for that belief.

(4) However, the investigation had not been fairly carried out. The procedure was defective in that:

(a) Mr Boker who investigated, disciplined and heard Mr Garnish's appeal against his own decision to dismiss, formed the view that the respondents were guilty of theft when he received the security printouts on 26th April.

(b) he did not give the respondents prior notice of the purpose of the disciplinary interviews, nor were they given the opportunity to obtain representation.

(c) Mr Boker did not inform the respondents of the extent of the evidence which he had obtained and relied upon, so as to give them the opportunity to put their side of the story.

(d) They were not advised of their right of appeal, which in any event in the case of Mr Garnish, went to the person making the dismissal decision.

(5) Accordingly the dismissal was unfair.

(6) Both respondents had contributed to their dismissal to the extent of 50%, which reduction was eventually applied to both the basic award and the compensatory awards made by the tribunal.

(7) Further, the tribunal assessed the "Polkey deduction" at a 20% chance that had a fair procedure carried out they would still have been dismissed.

The Liability Appeal

Mr Duggan, who appeared below, accepted that these dismissals were carried out in breach of the company's own procedure. But he submits, as he did before the Industrial Tribunal, that once Mr Boker saw the printouts, and it appeared that Mr Munkley had lied to him on the occasion when all the drivers were asked whether they had been airside at the material time, any further investigation was pointless. The Industrial Tribunal rejected that submission. It found instead that had a proper procedure been carried out there was an 80% chance of the respondents keeping their jobs. That findings was perverse, submits Mr Duggan.

We disagree. It seems to us that these were classically questions for the industrial jury. The appellants' case is that these men have lied throughout, including at the Industrial Tribunal. That is quintessentially a matter for the Industrial Tribunal. We have concluded that no arguable point of law arises in relation to the liability decision.

The remedies appeal

Again Mr Duggan's complaint relates to a question of fact. Was Mr Munkley working and earning money after his dismissal? He was living in a Public House, paying £50 per week rent according to his evidence, on £98 per fortnight benefits. Mr Duggan's clients suspected that Mr Munkley was working in that establishment. They brought no evidence to support that contention. Again, it seems to us that these are matters of fact and there are no grounds for us to interfere with the tribunal's findings.

Settlement

The appellant complains that following the liability decision being orally announced by the Industrial Tribunal the appellant's Counsel offered each respondent £1,000 to settle his case, subject to the employers reserving their right to appeal on the question of liability, and each man accepted that offer. When told of this agreement the Industrial Tribunal refused to make consent orders, but advised both respondents to consult the Citizens Advice Bureau on the basis, Mr Duggan tells us, that they would receive more in compensation if they went to a further remedies hearing. In the event one did, one did not. It is submitted that the Industrial Tribunal had no right to refuse to make the consent order.

Any agreement which precludes a person from pursuing a claim of unfair dismissal before the Industrial Tribunal is void, unless it falls within one of the exceptions contained in s.203 of the Employment Rights Act 1996. A consent order withdrawing an application upon agreed terms, once made, will be binding on the applicant and no further proceedings can be instituted in respect of the same complaint. See Times Newspapers v Fitt [1981] ICR 637. However, such an order is not a rubber-stamping exercise on the part of the Industrial Tribunal. It is a judicial decision. See Barber v Staffordshire County Council [1996] IRLR 209. It is entitled to enquire whether a party has given his informed consent to the agreement. Until the consent order is made, there can be no binding settlement in the absence of a s.203 exception. That was the position in this case. The respondents were entitled to withdraw from their agreement unless and until a consent order was made by the Industrial Tribunal. It never was. Accordingly this ground of appeal also fails.

That disposes of the arguments raised in this appeal. We conclude that there are no arguable points to go to a full appeal hearing, and consequently this appeal must be dismissed.