United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR R CLAYTON (of Counsel) EEF Broadway House Tothill Street London SW1H 9NQ
For the Respondent	MR A BISHOP (of Counsel) Messrs Turner Coulston Solicitors 29 Billing Road Northampton NN1 5DQ


 


JUDGE PETER CLARK: This is an appeal by the Respondent employer, KAB Seating Ltd, against a decision of the Bedford Industrial Tribunal sitting over three days, followed by two days of discussion, between August 1996 and January 1997, upholding the employee, Mr Kanani's complaint of unfair dismissal. Extended reasons for that decision are dated 31 January 1997.

The Facts

The Applicant was employed by the Respondent from 1 December 1986 until his dismissal on grounds of alleged gross misconduct effective on 3 April 1996.

The Respondent designs and manufactures vehicle seating for agricultural and construction vehicles at their factory premises in Northampton. The Applicant was employed as a machine operator on the Hot Cure Foam Plant. His area of work included an oval-shaped carousel track on which there were some 60 separate carriers. On top of each carrier is a mould. Each carrier and its mould passes through an oven for some 15-20 minutes.

The Respondent had experienced a problem with carriers coming off the track for some two years, resulting in production time being lost whilst the oven cooled down so that the track could be checked and the carrier put back on track.

Checks revealed that there was nothing wrong with the track and the suspicion grew that these were deliberate acts of sabotage. Mr Morrisroe, the process manager, at first suspected that an employee called Mick Lothin was responsible for removing the carriers. However, he left the employment and the problem persisted. Specifically, carriers came off the track on four separate occasions between 19 December 1995 and 14 March 1996. With one exception such incidents occurred between 1.45 pm and 2.30 pm. Two shifts were in operation; 6 am to 2 pm and 2 pm to midnight. The Applicant regularly worked the morning shift.

On 29 March 1996 Chris Poll, an employee working in the relevant area, informed Mr Morrisroe out of the blue that the Applicant was responsible for taking off the moulds. The Applicant was alleged to have said to Mr Poll, "Don't worry Chris I will take the mould off later". Consequently, the Applicant was suspended on full pay on that day. He denied any involvement and maintained that denial during the disciplinary investigation which ensued. An investigation was carried out by Mr Morrisroe which the Tribunal found to be full and detailed.

In addition to interviewing Mr Poll, Mr Morrisroe saw five other employees, Brian Haynes, Terry Mayes, Bill Lynch, Paul Collins and Darren Tarr. Having considered what they had to say and the Applicant's account, he concluded that there had been sabotage and that the Applicant was responsible. In particular, he accepted Mr Poll's account and rejected that of the Applicant; he was, in reaching that position, influenced by the Applicant's denial that he did not know how to lift a mould after being employed in the area for ten years. Mr Morrisroe did not think that credible.

Accordingly, Mr Morrisroe dismissed the Applicant at a meeting held on 3 April 1996. Thereafter the Applicant appealed unsuccessfully, first to Mr Chittock and Mrs Jones, the personnel manager, and finally to Mr Lorraine, the managing director.

The Industrial Tribunal Decision

Having found that the Respondent had established a potentially fair reason for dismissal, namely misconduct, the Tribunal directed themselves as to the well-known three-fold test in British Home Stores Ltd v Burchell [1980] ICR 303 (Note); without, in our view, placing any burden of proving reasonableness on the Respondent, see Boys and Girls Welfare Society v Macdonald [1996] IRLR 129. They correctly reminded themselves that it was not for them to substitute their view for that of the employer, see Iceland Frozen Foods Ltd v Jones [1983] IRLR 439.

Dealing with the Burchell test they found, first, that the Respondent had a genuine belief that there had been sabotage on the track. However, they made no finding one way or the other as to whether the Respondent genuinely believed that the Applicant was responsible for any or all of the sabotage incidents.

Secondly, they expressed concern as to whether there was unfairness in that the statements taken from the witnesses interviewed by Mr Morrisroe were not produced to the Applicant at or before the disciplinary hearing on 3 April 1996. However, they made no express finding as to whether there was procedural unfairness at that stage, nor did they go on to consider whether any such defect was cured on appeal.

Finally, the question of reasonable grounds. In the course of their reasons under this head the Tribunal identified a number of features to which, as they put it, the Company attached little or no importance. They included the following:

(1) That Mr Mick Lothin had previously been suspected of sabotage.

(2) That some of those interviewed did not support the contention that the Applicant was responsible for sabotage, carrying out their own assessment, so it seems to us, of the weight to be attached to the evidence provided by Messrs Lynch, Harding and Mayes.

(3) The Applicant had considerably longer service than Mr Poll.

(4) The Respondent appeared to attach a great deal more weight to their view that Mr Poll would not make up a conversation which he initially reported to Mr Morrisroe, than to the Applicant's claim that Mr Poll had said that he, Poll, would stitch him, the Applicant, up.

(5) The fact that Mr Poll was white and the Applicant black and that Poll's allegations against the Applicant may have been racially motivated. That was not a complaint made against Poll by the Applicant, so far as we are aware.

(6) That evidence from Mr Haynes that on one occasion, when the Applicant was at the bottom of the track, he had said to Haynes that they would have a break in a minute and three minutes later the mould came off, was, in the words of the Tribunal, circumstantial evidence.

(7) Critically, we think, the Tribunal formed the impression from their own observation of the Applicant giving evidence before them, that the Applicant presented as an honest and truthful witness.

(8) That the Applicant would be risking life and limb in sabotaging the track, on the assumption that he would need to enter the heated tunnel in order to carry out the act of sabotage, without a motive, and that this defied belief, in the Tribunal's view.

In these circumstances the Tribunal expressed their conclusions in this way at paragraph 5 of the reasons:

"5. Decision

The Tribunal considered this case at considerable length, hence the two discussion meetings. It is their unanimous view that a reasonable employer would not have concluded on circumstantial evidence, with the absence of a lack of motive, ignoring similar incidents of sabotage which could not be put at the door of Mr Kanani and the other factors referred to in this decision that there were reasonable grounds for belief at the time of dismissal in the guilt of the Applicant."

In those circumstances they found the dismissal to be unfair.

The Appeal

Mr Clayton takes principally three points in this appeal. The first is that the Tribunal failed to make a finding as to whether the Respondent genuinely believed that the Applicant was guilty of the misconduct alleged, namely, industrial sabotage. We think that submission is plainly correct on the face of the Tribunal's reasons. The Tribunal found only that the Respondent had a genuine belief that there had been sabotage.

Secondly, he submits that the Tribunal misdirected themselves as to the burden and standard of proof. We do not think that ground is made out. In our view the Tribunal correctly approached the question of reasonableness in accordance with the neutral burden identified in Boys and Girls.

Thirdly, and we think most significantly, he contends that despite their correct self-direction that it was not for the Tribunal to substitute its view for that of the employer, that is precisely what this Industrial Tribunal did when embarking on an evaluation of the weight of the evidence before the Respondent at the relevant time, that is, when the decision to dismiss was taken. In support of this submission he relies upon the approach laid down by Wood J in Linfood Cash & Carry Ltd v Thomson [1989] ICR 518, 523G-H, and that of the Court of Appeal in Morgan v Electrolux Ltd [1991] IRLR 89, per Balcombe LJ, giving the judgment of the Court at paragraphs 18-19 of the report.

Mr Bishop, with characteristic realism, although by no means conceding the point, recognizes that the exercise carried out by the Industrial Tribunal in considering whether the Respondent had reasonable grounds for believing that the Applicant was guilty of the misconduct alleged against him, comes very close to falling into the trap identified by Balcombe LJ in Morgan. In our judgment the Industrial Tribunal crossed the line and did carry out their own evaluation of the material, based in part on their own assessment of the Applicant as a witness before them, not simply to test the Respondent' grounds for concluding that the Applicant was guilty of the misconduct alleged, but in order to reach their own view as to what they would have decided had they been in the shoes of management. That is an impermissible exercise, as they themselves appreciated and, in our judgment, vitiates their decision. It must be set aside and the appeal is allowed.

However, we bear in mind the strictures expressed by Balcombe LJ in paragraph 20 of the judgment in Morgan. We are not in a position to reach a conclusion with any certainty as to the inevitable outcome of this case on the facts as found. Anything less than certainty must mean that the case is remitted to a fresh Industrial Tribunal for rehearing de novo. It will be for the next Industrial Tribunal to consider the following questions:

(1) Did the Respondent have a genuine belief that the Applicant was guilty of industrial sabotage?

(2) If so, did the Respondent carry out a reasonable investigation? Was there procedural unfairness in failing to provide copies of the witness statements gathered during Mr Morrisroe's investigation to the Applicant prior to the disciplinary hearing held on 3 April 1996? If so, was that defect cured on appeal by a rehearing? See Whitbread & Co v Mills [1988] ICR 776.

(3) If so, did the Respondent have reasonable grounds for their belief that the Applicant was guilty of the misconduct alleged?

(4) Finally, did dismissal fall within the range of reasonable responses open to this employer in determining whether or not the dismissal was fair or unfair.