United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P McMASTER (of Counsel) Messrs Addleshaw Booth & Co. Solicitors Sovereign House PO Box 8 Sovereign Street Leeds LS1 1HQ


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there are arguable points of law in a Notice of Appeal which the Midland Bank Plc wishes to make against a unanimous decision of an Industrial Tribunal held at London (North) on 16 June 1998.

The Tribunal concluded that the Applicant, Mr Madden had been unfairly dismissed and he was awarded £11,300 compensatory award together with a basic award. This is a case where the reason for the dismissal was conduct. It was effectively being alleged by the Bank that the Applicant who had 11 years exemplary service with them, had been party to the misappropriation of, [I think], Switch Cards and therefore he should be dismissed. It was the Bank's view that they had taken their decision after proper investigation and reasonable enquiries and that they had reasonably concluded that the Applicant should no longer be retained in their employment.

This was a case therefore, where the Burchell test had to be applied. Counsel on behalf of the Bank submits to us that there has been an error of law in the application by the Tribunal of that test. He says firstly, having regard to what is said in paragraph 15, that the Industrial Tribunal has required the employer, effectively, to show proof beyond reasonable doubt, either objectively or in their own mind. Either way, he says that is arguably wrong. We consider that point to be arguable, but wish to give no indication as to how it will be resolved in due time.

The second complaint in law is that the Industrial Tribunal in this case appear to have sifted and weighed the evidence themselves, and in effect, substituted their own judgment for that of the employer, instead of applying the Burchell test. Again, we think that is arguable, based on the terms of paragraphs 15 and 16 of their decision and again, we would wish to indicate that by giving leave, we are not indicating one way or the other as to how that point will be decided.

The third ground is that the Tribunal had not approached correctly the question as to whether the employers had carried out a reasonable investigation. It is said that they have conflated the question of a reasonable investigation with the other parts of the Burchell test. That again, seems to us to be arguable based upon paragraph 16 of the Tribunal's decision, but we repeat our caution as to its prospect of success.

The final point which Counsel wished to have argued, and a number of detailed submissions were made in the skeleton argument was to the effect that the Industrial Tribunal had arrived at conclusions of fact which were not supported by the evidence, so that some of their findings could be categorised as perversed.

It seems to us that this case represents a classic case of the dilemna which Tribunals face in a misconduct dismissal case. On the one hand the Burchell test requires them to look at the decision taken by the employer and the reasons for it and to go no further; on the other, so far as the Applicant employee is concerned, he wishes to avail himself of the opportunity to clear his name as he sees it and give evidence about his actual culpability.

In the context of the hearing, it appears that the Applicant in this case did give evidence as to his non-culpability and the Tribunal have based partly on that certain conclusions as to the adquacy of the investigatory process and so forth.

It seems to us that the perversity element to this appeal is not one which we should permit to go ahead for a full hearing. It seems to us that the way the Tribunal have approached this case is borne out fully by the findings which they have made in their decision, but our appellate jurisidication is confined to looking at the way they have dealt with the legal position in the light of the facts that they have found. We were not impressed with great respect to Counsel, by the submissions as to the perversity arguments. It is unlikely that the Tribunal has arrived at factual conclusions which could be described as 'off the map' and we are not satisfied that it is arguable that what they have done in this case, represents a distortion of the evidence. That does not mean to say that their whole approach may not have been wrong and it is their approach to the questions at issue which lies at the heart of this appeal, for which we have given leave.

On that limited basis therefore, although it is relatively extensive in one sense, we allow this appeal to proceed to a full hearing.

I am not prepared to order notes of evidence at this time, I do not think that they are required. It is a category A case, because I think it raises in acute form, the issue to which I have referred: that is what evidence the Tribunal should or should not receive in a misconduct unfair dismissal case. The Respondents do not appear to have filed a PHD form. They have erred in that respect and they are greatly to be criticised if they have not done so. I should make it plain that as a result of them not having done so, I am going to make no further directions in this case. If they want any further directions, then they will have to apply for a directions hearing and run the risk that that may involve some costs. However, I think it unlikely that further directions will be required in this case, save that, I think this case should be listed for a whole day, so that these issues can be properly and fully determined. Of course the usual rules apply as to the service of skeleton arguments and so on. This is a relatively important case generally and is plainly of great importance to both parties.