United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DESMOND KEANE QC Legal Department Nigerian Community Centre 140 New Cross Road London SE14 5BA


 


MR JUSTICE KEENE: By a decision with extended reasons given on 26th April 1996, an Industrial Tribunal sitting at Ashford in Kent decided that the appellant, as he now is, had been fairly dismissed and that his claims for unlawful discrimination on the grounds of race would also be dismissed. The tribunal in addition made two orders as to costs, but those are no longer in issue in this appeal.

The appellant originally appealed against those costs orders and against both decisions to which we have referred, but Mr Desmond Keane QC, who has appeared on his behalf today, has made it clear that this appeal is now pursued solely on the issue of unfair dismissal. He has accepted that the claims in respect of unlawful racial discrimination should not be pursued and nor are the appeals against the costs orders. That has focused attention, therefore, on the appeal against the unfair dismissal claim.

This hearing is a preliminary one to enable the appellant to show cause why this appeal should be allowed to proceed to a full hearing. He had been employed by the respondent, a large insurance company, as an area sales adviser, advising on and selling his employers' financial products. His employment began in 1989 and ended on 23rd August 1994. The tribunal found that he was dismissed for gross misconduct, that being the making of many private unauthorised telephone calls on the company's telephone account. 42 of those calls were to Nigeria.

The company had conducted a formal investigatory interview, during which the appellant admitted making the calls to Nigeria. He was then suspended, and a formal disciplinary hearing subsequently took place. At that he was represented by his union representative. The date of that disciplinary hearing was 23rd August 1994.

The appellant at that occasion admitted having made the telephone calls, and admitted that at least one of the statements which he had made during the investigatory interview had not been correct. The regional sales manager, Mr Cooper, who was conducting that hearing, did not believe that the appellant had intended to pay for the telephone calls. He took the view that what had occurred was gross misconduct involving as it did, in his view, a fraudulent use of the company's telephones. In consequence the appellant was summarily dismissed.

He appealed under the company's own appeal procedures, and it was accepted before the tribunal that the appeal had been conducted fully and fairly. The appellant admitted that he had been in the wrong in making the telephone calls and at the disciplinary hearing in August 1994, he had offered to pay for the telephone calls, but the respondent had rejected that offer. The appellant and his union representatives had submitted that he should have had a final written warning.

The tribunal below concluded that the disciplinary process had been fairly carried out, and it also found that while it was open to the respondent to give merely a final written warning had it wished to do so, it was equally open to any reasonable employer in those circumstances to dismiss, and that that is what the respondent decided to do. It concluded that dismissal was within the range of reasonable responses. Having considered all the circumstances, they found that the dismissal was fair.

Before us today Mr Keane submits that in the circumstances of this case it is arguable that the employer's decision to dismiss was not within the range of reasonable responses. He points to the fact that the appellant had worked with this employer since 1989, so that he was a long-serving employee in a position of responsibility. Of course, one is bound to comment there that it was his position of responsibility that made his conduct in relation to the telephone calls, assuming that those had been dishonestly made, particularly significant and serious. Mr Keane points out that the cost of the telephone calls to Nigeria came to £148.44 which, while not insubstantial, is not a fortune. He also relies on the offer made by the appellant to pay at the disciplinary hearing. In consequence it is submitted that the appellant's conduct might amount to irregular and undisciplined conduct, but in the absence of a finding that he never intended to pay, it could not be seen as amounting to gross misconduct warranting summary dismissal. Mr Keane contends that it is not clear from the tribunal's decision that the tribunal actually found that there was no intention to pay for the telephone calls. He says that if one looks objectively at the facts, at worst there was possibly an element of suspicion. It is then further submitted that there was not a sufficient evidential basis for any conclusion, if such was the conclusion, that the appellant had not intended to pay for the telephone calls.

We remind ourselves, as the Industrial Tribunal itself did, of the proper approach in law to cases such as this as set out in the well-known decision of British Homes Stores Ltd v Burchell [1978] IRLR 379. It was there indicated that a tribunal, dealing with a case such as this, has to decide whether the employer who discharged the employee entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. The case indicated that there were three elements which arose on that approach, and the tribunal below in the present case also noted that there were three such tests to be applied. We have little doubt, therefore, that the tribunal below had those three tests very much in mind.

The three elements are these: First the employer has to have a bona fide belief in the guilt of the employee of that misconduct. Secondly, the employer must have had reasonable grounds in his mind upon which to sustain that belief; and thirdly, there must have been an adequate investigation by the employer so as to establish the belief which the employer had formed. That has been described as an investigation which was reasonable in all the circumstances of the case.

In the present case, the Industrial Tribunal clearly found that the employer had a bona fide belief in the appellant's guilt of this misconduct, and no suggestion to the contrary is made before us. Equally, taking the third of the elements in the Burchell test, no criticism is made of the respondent's investigation of the matter. There remains the question about the reasonable grounds for the belief. Did the tribunal find that there were reasonable grounds for the employer's belief that this was fraudulent conduct. We have concluded that, on a fair reading of this decision, it is clearly implicit if not explicit in the decision, in particular in paragraphs 22 to 26, that this tribunal below took the view that the employer was justified in concluding that the appellant had not intended to pay. That amounts to a conclusion that the employer did have reasonable grounds for the belief in his guilt. They had before them evidence that these telephone calls to Nigeria had been made over a long period of time beginning in about October 1993. There was no evidence at all that the appellant had ever told management that he made such unauthorised calls before the itemised bills were received and, as a result, aroused the suspicions of management. There was no evidence that he had volunteered to management that he had made such unauthorised calls before the investigatory meeting took place, which was itself on 10th August 1994.

In cases like this, it is well-established that one has to read the decision as a whole, and if one does that, we are in no doubt that the tribunal below was satisfied and did find that there were reasonable grounds for the employer's belief. The matters to which we have referred also provided a proper evidential basis for such a conclusion. It cannot be said that such a conclusion on the part of the tribunal was one for which there was no evidence. As to the adequacy of that evidence, it is well-established that that is a matter for the fact finding tribunal. They have to decide how much weight to attach to particular pieces of evidence put before them. We can see no arguable point arising on that particular part of the submissions made on behalf of the appellant.

Some reference has also been made to certain evidence that other members of staff had or might have carried out similar unauthorised calls. This is a matter which is referred to in the Industrial Tribunal's decision. It appears that there were suspicions aroused because there had been some calls to Spain and at least one or more calls to the United States of America. Those were investigated and the conclusions which were reached upon investigation by a Mr Faulkner on behalf of the employer was that the calls to Spain, which had been made by a Mr Morris, had in fact been proper business calls and were not personal calls like those made by the appellant. So far as the telephone number in the United States of America which was disclosed on the telephone bill was concerned, that particular number was telephoned by Mr Faulkner and it was answered by somebody who described himself as Mr Akande's brother, that is to say the brother of the appellant, and he confirmed that Mr Akande lived in England. We can see no basis upon which that should have aroused suspicions that someone other than the appellant was making those calls. We cannot see any basis for asserting that the employer in this case had acted towards other employees in a way which was clearly out of tune with the manner in which they dealt with the allegations against this appellant. We can, therefore, see no arguable point which could be pursued on that particular aspect of the case.

It follows that there is no arguable point in our judgment which arises in this appeal, and consequently it should not be allowed to go any further. This appeal will be dismissed therefore at this stage.

We are nonetheless very grateful to Counsel for the appellant for the concise and as usual persuasive way in which he has sought to present his client's case this morning.