Title: Appeal No.
Author: TEST USER
Last saved by: vmartzou
Company: BAILLI

Appeal No.	 EAT/251/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 March 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR J D DALY
MR A E R MANNERS

MRS K E MATTAS	APPELLANT

CARADON MK ELECTRIC LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant

MR C DIXON
(Representative)

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing is to determine whether there is an arguable point of law in the Notice of Appeal which has been filed on behalf of Mrs Mattas, the applicant, against a decision of an Industrial Tribunal held at Stratford on 14th November 1997. By their decision the Industrial Tribunal dismissed the applicant’s complaint of unfair dismissal brought against her former employers, Caradon MK Electric Ltd. The reserved decision was sent to the parties on 10th December 1997.

	The background facts necessary for the purposes of this hearing may be taken from the Industrial Tribunal’s decision. For some eight years the applicant/appellant had been employed by the respondent Company. She was a production control officer at the time of her dismissal on 4th March 1997. The reason for her dismissal was the suspicion by the Company that she had been guilty of taking their property unlawfully. 

	On a Saturday at the end of February 1997, she had been seen by a number of people in an area known as the S2 Department. She was not entitled to be in that area and should not have been there on a Saturday. She was seen by various people to be carrying, at that stage, plastic bags. She had been seen with a plastic bag sticking out of each of the front pockets of her blouson, and she was seen by a witness to be carrying three plastic bags out to her car, to put them into her car and drive off. 

	The Company proceeded to conduct an investigation; she was interviewed and told that she had been seen on 15th February 1997 in the S2 Department loading up black bags. Her response was to deny that she was on the premises and said she knew nothing of the allegations. The interview was adjourned and the investigation continued on 4th March 1997, and at that time the investigatory interview turned into a disciplinary interview and it was as a result of that, that she was dismissed.

	The applicant had been represented at the hearing by Mr Clark, and he referred the Industrial Tribunal in argument to the leading authority British Homes Stores v Burchell [1980] ICR 303 and argued that the dismissal of Mrs Mattas was unfair because of the following matters. Firstly, he said, that there were inconsistencies in the witness statements which the Company relied upon. Secondly, he contended that the Company had failed to follow its own procedures. Thirdly, he criticised the Company for failing to give to Mrs Mattas any information about what was stolen. Fourthly, he said that the Company had failed to give Mrs Mattas an opportunity either to submit a statement herself or to see the statements of the witnesses concerned. Finally, he drew attention to the Company’s failure to give her or her representative information prior to the meetings on 28th February and 4th March 1997, and their failure to warn her that the 4th of March meeting was a disciplinary meeting.  There were other contentions that he also made which are recorded in the decision.

	On behalf of the respondents, who were represented by a representative of the Engineering Employers Federation, it was submitted that it was not surprising that the statements of the witnesses were inconsistent; it was asserted that the Company had followed its own procedure; that the matter had been fully investigated and to the best of their ability; that the reason for the dismissal was clearly set out; that it was a question of who to believe and “there was sufficient here for the Respondent reasonably to take the view that Mrs Mattas was guilty of removing its property”.

	The tribunal, having set out the facts as they had found them to be, and having recited the contentions of the parties, concluded in paragraph 15 as follows:

“15	  The Tribunal had grave concerns about the way in which the Respondent conducted the investigation of Mrs Mattas’s conduct and the procedures leading to her dismissal, in particular:
a)	there was not a full investigation of the possible contents of the bag or bags alleged to have been carried out of the premises by Mrs Mattas; this is particularly relevant given the weight of the Respondent’s products;
b)	Mrs Mattas was not told of the specific charges against her before the meeting on 28 February began;
c)	Mrs Mattas did not have access to the written statements and was, therefore, unable to prepare her defence; and
d)	the meeting on 4 March changed from being an investigatory meeting to a disciplinary meeting.
The Tribunal also draw attention to the unwillingness of the Respondent’s staff to take responsibility for security in the S2 Department and to its lax stock control.”

	It seems to us, that the Industrial Tribunal have properly approached this case. They have directed themselves correctly as to the law, and have asked themselves whether, in the circumstances, the Company has carried out a proper investigation such as would justify them in reaching the conclusion that the employers were entitled to fairly dismiss her. Their conclusion is set out in paragraph 16:

“16	  However, the Tribunal has to take into account that the Respondent had evidence from three witnesses of Mrs Mattas carrying sacks from its premises and that when she was first asked about this, Mrs Mattas denied having been on the premises at the time in question. Applying the decision in Burchell, we accept that the Respondent had a genuine belief that Mrs Mattas had removed the company’s property from its premises. Given the evidence and her initial lies, that belief was reasonably held. In the circumstances, dismissal fell within the band of reasonableness. Therefore, we find that the dismissal of Mrs Mattas by the Respondent was fair.”

	On this appeal it is has been argued on behalf of Mrs Mattas that in the light of the findings of the tribunal in paragraph 15, to which I have referred, it was effectively perverse for the Industrial Tribunal to have reached the conclusion they did in paragraph 16. It is said that this is a clear case where the third requirement of the Burchell test has not been satisfied. It was said that cases such as the Boys & Girls Welfare Society v McDonald  can be distinguished on their facts.

	As to that submission, it seems to us with great respect, that it is impossible to say that there is an inherent inconsistency between paragraphs 15 and 16. The fact that an investigation was not carried out to the satisfaction of the Industrial Tribunal will not inevitably lead to a conclusion that the decision of the employer was unreasonable. It was entirely right for the Industrial Tribunal to consider with care the way the employers had sought to investigate the matter. It was entirely right of them to note that there was no direct evidence as such as to what items of property, if any, of the Company had been taken by Mrs Mattas. But having criticised the procedure, for the investigation and the way it was carried out, it seems to us that they were nonetheless still entitled on the facts of this particular case to ask themselves the question, whether dismissal in all the circumstances fell within the range of reasonable responses of an employer having regard to what knowledge it had acquired at that time. The plain fact is that there was overwhelming evidence before the employers to the effect that Mrs Mattas had come into an area of the premises into which she was not entitled to go, and had left from there carrying three plastic bags which previously had been empty but which were now full and had been seen to put them into her car. The fact that their lax stock control did not enable them to say precisely what items had been taken, was plainly a matter which the Industrial Tribunal did take into account as they were entitled to do. But in the face of that evidence, and in particular in the face of her outright denial that she had been there when she was first asked about the matter, it does seem to us that the Industrial Tribunal’s decision was one which was open to them, whatever view we may have taken ourselves had we been fulfilling their function, which we do not.

	Accordingly, on that first point, it seems to us, that there is no arguable point of law. We think the tribunal were right.

	In relation to the second question, that is whether as a result of the procedural defaults of the Company, the decision of the Industrial Tribunal was sustainable.

	It seems to us, again, precisely the same comment can be made. The procedural shortcomings in this case have been well flagged by the Industrial Tribunal. Their decision on this part of the case is a model of its kind. It seems to us that they were the judges as to the effect that any procedural shortcomings had on the reasonableness of the decision in all the circumstances. We are not persuaded that that is an arguable point of law either. That being so, it is our duty at this stage to dismiss this appeal, since we will only entertain appeals which raise arguable points of law. We are grateful to Mr Dixon for his full skeleton argument which we read with care before arriving at this decision.

Copyright 1998

EAT/251/98

EAT/251/98
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