United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON


 


MR JUSTICE MAURICE KAY: This is a preliminary hearing of an appeal by Mr Roussel against a decision of the Industrial Tribunal held at Stratford on 27 February 1997. Mr Roussel worked for British Telecom as an external engineer from August 1979 until he was dismissed on 22 February 1996.

In the proceedings before the Industrial Tribunal he was seeking to establish that that was an unfair dismissal. However, the Industrial Tribunal concluded that he had been fairly dismissed for a reason relating to his conduct. It is against that decision that he now seeks to appeal.

The background to the case involved some investigation as to a dispute which apparently had arisen between Mr Roussel and his wife, or one of them, and a next door neighbour, who was some 83 years old.

The employers in this case, British Telecom, received a complaint that the aged neighbour had been receiving nuisance telephone calls. There was an investigation by the employer about that complaint. The police were also involved and it was at the request of the police that British Telecom connected a call trace to the neighbour's telephone. It was discovered as a result of that, that a number of the nuisance calls were originating from Mr Roussel's home telephone number.

The neighbour was then given a new ex-directory number but, notwithstanding the change of number, a further nuisance call was received. The new number could not have been accessed by a member of the public but it could have been accessed by a person of Mr Roussel's training, experience and position.

The investigation proceeded. It uncovered the fact that one nuisance call was made from a call box close to the point at which Mr Roussel had been working on that very day and time. It was also discovered that one of the nuisance calls had been made from a private service line situated at the Edmonton telephone exchange, a line to which Mr Roussel would have had the possibility of access, but the public would not.

In the course of the investigation Mr Roussel's wife was interviewed. She sought to take the blame for all the nuisance calls that had been made, claiming that it was in the context of a protracted neighbour dispute with the lady next door and members of her family. However, the Industrial Tribunal decision records that Mrs Roussel could give no satisfactory explanation of the calls made from the call box or from the Edmonton telephone exchange. She appeared not to possess the knowledge of detail which would have been available to the person who had made those two calls and, despite her confession, British Telecom did not believe that she had made those particular calls.

The investigation and the evidence before the Industrial Tribunal ranged over the matters to which we have just referred and other matters as well. It is not necessary for us to recite all of that. What we have done is to set out some of the material so as to give a flavour of what was being investigated and how British Telecom came to the view which they eventually did.

As we have indicated, the persons investigating on behalf of British Telecom simply did not accept Mrs Roussel's confession. There were other matters about which they were unhappy. There was one call which, when she was asked to time it, she put at 5.30 am when, in fact, it had been made at 11.56 pm. Considering all this, the Industrial Tribunal came to the view:

"It is little wonder that the explanation offered by Mrs Roussel was not accepted as satisfactory or that it led the investigators to believe that it was not a truthful explanation".

When the investigators interviewed Mr Roussel he denied making any of the calls but he, in accordance with the findings of the Industrial Tribunal, was unable to offer any satisfactory explanation of the fact that the ex-directory telephone number of a member of the neighbour's family was recorded in Mr Roussel's own notebook. There was no obvious reason for it being there and in the absence of a credible explanation was something which led British Telecom to treat that as a piece of evidence to be weighed in the balance.

The conclusion reached by the investigators within British Telecom was that Mr Roussel had indeed made some of the nuisance telephone calls and had abused his position as a telephone engineer to ascertain the ex-directory number for the purpose of permitting his wife to make a nuisance telephone call.

When the Industrial Tribunal was considering the matter, it was not their function to arrive at the truth of what had taken place. Their function was to consider the fairness or otherwise of the procedures and the dismissal.

In the course of a very carefully worded decision, the Industrial Tribunal referred to "an impeccable investigation". They also referred to British Telecom as "having given Mr Roussel every opportunity to present his case". So far as the conclusion that Mr Roussel had indeed been guilty of misconduct was concerned, the Industrial Tribunal came to the view that that was "a bona fide belief arrived at on abundant and compelling evidence", adding "Faced with such a belief, it is difficult to see how the Respondents, consistent with their duty to the public, could have dealt with the matter in any way but by summary dismissal. That was a conclusion wholly within the range of responses open to the reasonable employer".

The Industrial Tribunal correctly identified the principles of law applicable to the case before them referring to Section 94 of the Employment Rights Act 1996, to Section 98 of the Act and to the well known authorities of Chamberlain Vinyl Products Ltd v Patel [1996] ICR 113 and British Home Stores v Burchell [1980] ICR 303. Indeed, the Industrial Tribunal set out a list of five propositions extracted from those authorities, propositions which are to be considered by any Industrial Tribunal when dealing with a case such as this. The Industrial Tribunal concluded:

"In approaching this case in this way, we have not the slightest doubt that the employers did reach a bona-fide conclusion, after a detailed and extensive investigation, affording Mr Roussel every reasonable opportunity to explain his conduct. The evidence available to them was very strong indeed and it pointed to Mr Roussel being guilty of very serious misconduct. As indicated above, it is very difficult to see how any employer, placed in such a relationship with the general public as is this employer, could have reached any conclusion other than that Mr Roussel should be summarily dismissed."

The Industrial Tribunal then set out an account of the format of the hearing which had taken place. They had been at pains to explain to Mr Roussel that their function was not to determine whether or not he had made the offending calls or had revealed the ex-directory number, but was whether the Respondent, British Telecom could, after a proper investigation and hearing, really hold such a belief. They record that Mr Roussel stated his understanding of the scope of the Industrial Tribunal's task but:

"he offered no sustainable criticism of the procedure adopted but he confined himself to insisting that he was innocent of wrongdoing and that any conclusion to the contrary could not reasonably have been reached."

This Appeal Tribunal is not in the business of reinvestigating facts and evidence. Our concern is simply to explore whether there is any appealable point of law raised by the decision of an Industrial Tribunal.

Mr Roussel has provided the court with a series of submissions numbering nine and has also provided us with some extracts from the literature which he believes to be supportive of those submissions. It is pertinent to observe that they are all matters related to the procedure and to previous decisions that have been made on procedural issues. In addition, he draws our attention, as indeed he drew the attention of the Industrial Tribunal, to the fact that he was prosecuted, but when the matter came before the Magistrates Court he was totally acquitted.

It seems to us that the submissions and the supporting material brought to our attention by Mr Roussel do not take this case any further. The authorities to which he refers include ones well known to us, although it is right to say that the majority of them were decided some considerable time ago. That is not to denigrate them in any way. We mention it simply to point out that in a case such as this the Industrial Tribunal was entirely correct to identify the Vinyl Products and British Home Stores cases as being the guiding cases applied by Tribunals up and down the country in this type of case. There is absolutely no doubt that the Industrial Tribunal identified and applied the legal principles with care and correctness.

In our judgment there is no arguable point of law raised by this appeal which stands any prospect of success were it go to a final hearing. In those circumstances the appeal is hereby dismissed.