United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A FULLWOOD (of Counsel)


 


HIS HONOUR JUDGE C SMITH QC: This is an application for leave to proceed to a full hearing of an appeal by Mr Johnson against the decision of an Industrial Tribunal held at Liverpool on 5 August 1988, of which extended reasons were sent to the parties on 6 August 1988, whereby the Tribunal held unanimously that the Applicant's application that he had been unfairly dismissed, failed, and should be dismissed.

The extended reasons are brief and really speak for themselves. We should simply say, as appears from those shortly expressed reasons, that the Industrial Tribunal held that the Applicant had been dismissed from his position as a fitter in the Respondent's security business for stealing cheques belonging to a customer of the business. The Industrial Tribunal made a finding of fact that the cheques had been discovered by the police at the Applicant's house and the Industrial Tribunal also made a finding of fact that he had at once admitted that he had taken the cheques. The Industrial Tribunal held in paragraph 3(ii) that having regard to the Applicant's admission that he had taken the cheques, and implicitly his awareness accordingly of the charge that was being laid against him by the employers by way of a disciplinary matter, that there was no need for the Respondent employers to give a written charge in advance of the disciplinary hearing or to offer him a witness. The Industrial Tribunal held in paragraph 3(v) that in all the circumstances, the employers had carried out a fair procedure and in paragraph 3(iii) that Mr Lightburn was entitled to reject the Applicant's contention, apparently made during the course of the hearing, that he had not acted honestly. The Industrial Tribunal went on to hold that particularly as the Respondents were in the security business, the dismissal was fair and within the band of reasonable responses of a reasonable employer.

There are a number of points which Counsel on behalf of the Applicant seeks to put forward as being of sufficient merit to justify the matter proceeding to a full appeal and we have borne in mind that the Applicant has only to satisfy us that there are arguable points. The main point is to the effect that there was no express reference by the Industrial Tribunal to the ACAS Code of Practice and in particular, to paragraph 10 of the ACAS Code of Practice and by way of even more particular, to paragraph 10(f) and (g) which are in these terms "10(f) Disciplinary procedure should (f) provide for individuals to be informed of the complaints against them and to be given an opportunity to state their case before a decision is reached; (g) give individuals the right to be accompanied by a Trade Union representative or by a fellow employee of their choice" and reliance is placed on the decision of this Employment Appeal Tribunal in the case of Lock v Cardiff Railway Company Limited where in dealing with a very different situation, which was then before the Employment Appeal Tribunal, the President drew attention to the importance of Industrial Tribunals where it is necessary having to hand and taking into account the Code of Practice.

We note however that in this particular case, Counsel, who had approved in the Industrial Tribunal, very properly accepted that these provisions of the Code had not specifically been drawn to the attention of the Industrial Tribunal. We find, looking at the substance of the Industrial Tribunal's shortly expressed reasons, that they did consider whether the Applicant had been dealt with fairly in light of the fact that he had not been given a written charge in advance, and they concluded that because he had admitted straight away that he had taken the cheques, there was no need in this particular case for him to have been the subject of a written charge. In our judgment, that was a decision that they were entitled to arrive at in the special circumstances of this case. In our judgment also it did in effect mean that although the Code was not expressly referred to by them, they did take into account paragraph F(10((f) of the Code.

They also in a few words in stating their decision in paragraph 3(ii) stated that it mattered not that he was not offered any witness for the self same reason, namely that, he was given a sufficient opportunity to state his case and had admitted taking the cheques.

Here again, in our judgment, on the particular facts here where there is an admission that cheques have been improperly taken from a customer's property, that was sufficient attention by the Industrial Tribunal to the substance of paragraph 10(g) and accordingly, we find that this particular ground of appeal is not arguable in the circumstances of this particular case. There was faintly argued a submission that there was no finding of gross misconduct but we find, looking at the totality of the decision, particularly at paragraph 3(iii) and 3(iv) that it is perfectly plain that the Industrial Tribunal were finding that the reason for the dismissal was gross misconduct. In our judgment, there are some things which are so obvious that they do not need to be spelled out. Really any employee in the Applicant's position would realise that he would lose his job if he committed an act of theft in the course of his employment of this kind, that is to say the theft of cheques from a clients' business so that we again do not find that point arguable.

In the skeleton arguments, although not developed orally, there is a complaint about the date of dismissal which we do not think we need to say anything further about and there is also complaint about the alleged failure of the Industrial Tribunal to be specific as to how the size and administrative resources of the Respondent was evaluated by the Industrial Tribunal in assessing the overall fairness of the decision to dismiss under Section 98(4). Again in our judgment, it is plain that the Industrial Tribunal were doing no more than bearing in mind that the Respondent was a relatively small employer, a factor which they were entitled to take into account as one of the factors of relevance in concluding whether the overall decision was a fair one within the reasonable responses of a reasonable employer.

So for those reasons, we have concluded that we must dismiss this Application.