United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR W BROWN (of Counsel) North Lewisham Law Centre 28 Deptford High Street London SE8 4AF


 


JUDGE PETER CLARK: This is an appeal by the Applicant before the London (South) Industrial Tribunal, Miss McConnachie, against a decision of that Industrial Tribunal sitting on 30 January and 26 March 1996, dismissing her complaints of unfair dismissal and wrongful dismissal against her former employer, Iceland Frozen Foods Ltd, the Respondent. Extended Reasons for that decision are dated 20 June 1996.

This is a Preliminary Hearing held to determine whether or not the appeal raises any arguable point or points of law to go forward to a full appeal hearing.

At the outset Mr Brown applied for leave to amend the Notice of Appeal. That application was granted.

The Facts

The facts as found by the Industrial Tribunal are set out in some detail in their extended reasons. They may be summarised as follows. The Appellant was employed by the Respondent as a cash supervisor at their Catford, South London, store. Her employment commenced on 30 July 1990 and ended with her summary dismissal on the grounds of alleged misconduct on 5 July 1995.

The incident leading to her dismissal occurred on 22 June 1995. At 8.47 am that day an entry was made on till No.1 at the store, indicating that a customer had returned a product to the value of £91.48 and received a refund. The transaction was spotted by the store manager as being suspicious. The store did not open to the public until 9 am, and the item returned, according to the store code, was salad onions. That is an awful lot of onions. At all events, it was common ground that the entry was bogus.

The security system in operation at the store included the following features. Each cashier, including the cash supervisor, is allocated a security number. In the Appellant's case her individual number was 1008. The Tribunal found that such numbers were rarely communicated to others, although the Appellant had told her trainee her own number.

The Appellant had her own office which was protected by a security door, access through which was gained by use of a further security number.

When goods were returned cashiers could not deal with the refund procedure alone. A senior member of staff holding an IBM key had to be involved. There were three key-holders at the store; the Manager, the Appliance Sales Manager, Julie and the Appellant.

The material refund was investigated by a Mr McGarr. He made the following findings;

"(a) The store computer had been turned on that morning at 8.45 a.m. by an operator using the code number 1008.

(b) That the Manager Mr Garwood had been absent on leave and had taken his keys with him.

(c) That Julie, the Appliance Sales Manager had not been at work until 11.00 a.m.

(d) That Mr George Frazer, the Stock Supervisor who had been standing in for the managers that morning, had in his possession the deputy Manager's keys which did not contain an IBM Key. Mr Frazer had been on duty from about 7.00 a.m. on that morning for the purpose of opening the store.

(e) Upon investigating the till rolls for till 1 from which the return had been made, he [Mr McGarr] found that 2 entries were missing. One of these related, he presumed, to the turning on of the till which could only be done after the store computer had been started. The second entry would have been the cash return. He also discovered that the Applicant had operated till 1 at 9.22 a.m. on that morning. No other cashiers number had been used on that till during the rest of the day.

(f) He confirmed that the cash receipts substantially balanced against the computer returns for the day."

Based on those findings Mr McGarr concluded that a fraudulent refund had been made; the money had been removed and that suspicion fell on the Appellant, whose individual security number had been used to open till No. 1, she being the only person in the store with an IBM key at the relevant time.

Following a short absence the Applicant came back to work on 27 June and was interviewed by Mr McGarr. Following that interview a disciplinary hearing was arranged for 5 July before Mr Rees, a Store Manager substituting for Mr Garwood who was on holiday. Another Store Manager, David Brown, acted as the Appellant's representative.

At that hearing the Appellant was shown a copy of Mr McGarr's report. She denied any dishonesty. However, Mr Rees decided that she was guilty of dishonesty and summarily dismissed her.

She appealed to the Area Manager, Mr David Hughes-Payne. There was what the Tribunal described as a general free ranging discussion over the whole matter. Following the appeal hearing Mr Hughes-Payne arranged for further points raised by the Appellant during that hearing to be investigated by Mrs Schofield, the Regional Personnel Officer, who had been present at the appeal hearing. Those points were:

"(a) As to why the Applicant would have used her own operator number and therefore incriminate herself;

(b) How she could have got from the cash office to the check out in 2 minutes. The Applicant felt that this was far too short a time to make the journey;

(c) As to how many other members of staff had knowledge of the combination to the cash office door;

(d) Who had cashed-up on the evening of the 22nd June;

(e) Why the Applicant had not been informed before her return to work on the 27th June of the suspicions against her;

(f) What other investigations had been carried out as to whether any other employees could have carried out the fraud."

Following that further investigation, which Mr Hughes-Payne took into account, he concluded that the fraudulent cash return had been made by the Appellant for the following reasons:

"(a) The Applicant's security number had been used to obtained the return. There was no indication, save the Applicant's claims, that her security number was used by anyone else in the store.

(b) In order to obtain the return an IBM key had to be used. Only the Appellant's key was in the store at the time.

(c) Till No. 1 had been operated under the Applicant's till number for the rest of the day. He [Mr Hughes-Payne] was not prepared to accept the Applicant's contention that some other cashier had used that till using her number. This was in any event against company policy and records show that this Cashier, Charmaine, was in fact signed on to another till from about 2.00 p.m. As the Applicant had worked on till No. 1 from time to time during the day, it would have been possible for her to remove the money from the till during that time.

(d) If the money was not in fact removed from the till in that way, the Applicant as Cash Supervisor, would have ample opportunity to remove the cash from the takings at some later point in time."

Accordingly, he dismissed the appeal by letter to the Appellant dated 1 September 1995.

The Industrial Tribunal Decision

The Industrial Tribunal directed themselves in accordance with the well known Burchell test. They concluded that the Respondent had carried out a sufficient investigation; it had formed a genuine belief as to the Appellant's misconduct; the circumstantial evidence was according to the Tribunal overwhelming, certainly more than adequate to enable the Respondent to come to the view that the Appellant was responsible for the fraudulent cash return transaction, and that dismissal fell within the range of reasonable responses, indeed the Tribunal thought that for such misconduct that was the only appropriate penalty. In these circumstances the complaint of unfair dismissal was dismissed.

Further, the Tribunal found that the taking of money in these circumstances amounted to gross misconduct. Accordingly the wrongful dismissal claim, that is a claim for pay in lieu of notice representing damages for breach of contract, also failed.

The Appeal

The first point taken by Mr Brown, who appeared below, on behalf of the Appellant is that the Tribunal's finding that the Respondent had carried out a reasonable investigation was perverse in the sense that no reasonable Industrial Tribunal, properly directing itself, could have reached that conclusion.

In support of that contention he relies upon an argument which he put before the Industrial Tribunal and which was rejected, namely that a reasonable investigation on the facts of this case would necessarily have included interviewing cashiers, the trainee, Bobby Turner and Security Officers in circumstances where it was said that the Appellant removed the money later in the day, possibly when in the cash office.

In our judgment that was a matter which the Industrial Tribunal considered and was entitled to reject. The requirement is for a reasonable investigation by the employer, not an exhaustive one. We can see no prospect of an argument based on perversity succeeding at a full appeal hearing.

Secondly, Mr Brown challenges the fairness of the appeal procedure. It was the Appellant's evidence, supported by her witness present at the appeal hearing, that Mr Hughes-Payne had not familiarised himself with the papers in the case before holding the internal appeal hearing; he denied that suggestion in evidence. That was an issue of fact for the Industrial Tribunal to decide. Although not expressly referred to in their reasons, we infer that the Tribunal accepted Mr Hughes-Payne's version on the grounds:

(a) that in paragraph 2 of the reasons the Tribunal state that where there was a conflict of evidence they preferred that of the Respondent's witnesses, and

(b) in paragraph 6 the Tribunal found that there was no deficiency in the way in which the investigations, including those at the appeal stage were carried out.

It follows that in these circumstances we are unable to discern any arguable point of law to go to a full appeal hearing and accordingly the appeal must be dismissed.