United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR D PANESAR (of Counsel) Messrs Finers Solicitors 179 Great Portland Street London W1N 6LS
For the Respondent	MS T GILL (of Counsel) Messrs Owen White Solicitors Senate House 62-70 Bath Road Slough Berkshire SL1 3SR


 


JUDGE PETER CLARK: This is an employer's appeal against a majority decision (the Chairman dissenting) of the London (North) Industrial Tribunal sitting on 12 February 1997, upholding the employee's complaint of unfair dismissal. Extended Reasons for that decision are dated 20 March 1997.

The facts briefly were these. The Respondent employee was employed as a Sales Consultant by the Appellant in the Selfridges concession selling a range of skin care products. The Tribunal found that the Appellant had no written expenses policy, relying instead on general practice and commonsense, namely that the only expenses which could be legitimately claimed were those directly relating to the Appellant's business. This would include tissues and cotton wool, for example.

The Tribunal found that the Respondent had, between March and June 1996, claimed expenses for items described as "toiletries" which included things such as chocolates, breath fresheners, fruit liqueurs and so forth to the value of £60. In evidence the Respondent claimed that she did so in accordance with the practice of previous managers.

She was asked to attend a meeting on 2 October 1996 and the Tribunal found that she was not advised of the purpose of that meeting and, in particular, it was not said to be a disciplinary meeting in advance of the hearing. At the meeting, we see from the minutes taken by the Appellant, the Respondent did not raise any question of previous practice entitling her to claim these items by way of expenses and, at the end of that meeting she, on being asked whether she had any reasonable explanation, is recorded as replying, "what can I say, you have got the evidence".

At the end of that meeting she was told that she would be suspended and should return to head office for another meeting on Friday 4 October at 9.30 am for the Company's decision as to whether or not to continue with the disciplinary. She did return on 4 October and the minute reads as follows. Mr Newman of Management asked the Respondent if, after having time to think about everything would she like to add to comments made in the previous meeting. The Respondent said "no". Mr Newman then said he had no alternative but to dispense with her services because he could no longer to trust her to run the Selfridges account "as we need to have an account manager we can trust".

Those facts were unanimously found by the members of the Tribunal. There was one issue of fact on which the Tribunal were split. The lay members accepted the Respondent's evidence as to her practice under previous managers and her assertion that such practice, which authorised her to claim the items which she had claimed earlier in 1996 by way of expenses, had continued and therefore she was expressly or impliedly authorised to make those claims.

Evidence called on behalf of the Appellant was to the effect that no such authority existed. There was no evidence led on behalf of the Appellant as to the practice prior to 1995. The Chairman took a different view of the evidence and preferred that of the Appellant's witnesses that the custom and practice of its employees and commonsense dictate that only business related items and not personal items could be claimed by way of expenses.

Having resolved that conflict of evidence in that way, the Tribunal Chairman writing the decision reasons observed that, so far as the minority were concerned their finding meant that the Respondent did not commit any misconduct.

A point was raised in the course of argument today as to whether that might be thought to be an indication that the majority had misdirected themselves as to their task in relation to the question of fairness. That is, they considered whether or not in fact the Respondent was guilty of misconduct instead of considering the reasonableness of the Appellant's belief as to that misconduct, which is set out in the well known case of British Home Stores Ltd v Burchell [1990] ICR 303. On this point we accept Ms Gill's submission by reference to paragraph 19 of the reasons that that finding of fact was material to the majority's eventual finding that the Respondent had not contributed to her own dismissal.

Having found the facts the Tribunal split along the lines which we have indicated. The Chairman's view was that the Appellant had carried out a reasonable investigation and that the Respondent did not have a convincing explanation for her expenses claims under scrutiny at either the meeting on 2 or 4 October 1996. He would have found that the employer genuinely believed in the Respondent's gross misconduct and that was a belief based on reasonable grounds following a reasonable investigation. Dishonest expenses claims fall within the general definition of gross misconduct and he would have found that dismissal fell within the band of reasonable responses.

The majority view is expressed at paragraph 18 of the reasons in this way:

"The majority view of the Tribunal is that the Respondent did not carry out a full and fair investigation, in that there was no attempt to explore what happened prior to 1995, and to ascertain whether previous managers had authorised the relevant expenses. It follows that even though the Respondent might have believed in the misconduct, that was not based on reasonable grounds, and that misconduct is not proven."

On that basis, by a majority, the Tribunal decided that the Respondent had been unfairly dismissed.

In this appeal Mr Panesar asks us to hold that the majority decision was perverse in the sense that no reasonable Tribunal, properly directing itself as to the law, and it is accepted that this Tribunal was properly so directed, could have reached the conclusion on the facts as found which the majority members reached in this case.

He acknowledges the high threshold which he must pass in order to establish the perversity ground of appeal, our jurisdiction being limited to correcting errors of law, and not interfering with industrial jury decisions.

His point is put attractively and succinctly in this way. How can an employer be said to have failed to carry out a reasonable investigation into past expenses practice when that matter was not raised by the employee either at the meeting on 2 October or on the subsequent meeting on 4 October, following a period of suspension?

The answer to that question, submits Ms Gill for the Respondent, is that on the Tribunal's findings of fact, the majority clearly took the view, on their assessment of the evidence, that the practice as stated by the Respondent in evidence, though not at the internal disciplinary hearings, did in fact exist; that management had laid down no express different practice and that the Respondent had not been given a proper opportunity to put her case fully at the two procedurally unsatisfactory meetings.

We think that is a reasonable exposition of the majority's position, and it is a position which, in our judgment the majority were entitled to take.

Accordingly we have concluded that the Appellant has not passed the perversity threshold so as to give grounds for our interfering with this Tribunal decision.

In these circumstances the appeal must be dismissed.