United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR E M HARDAKER Representative


 


HIS HONOUR JUDGE H WILSON: This preliminary hearing concerns an appeal against the finding of the Employment Tribunal that the Appellant was fairly dismissed, rather that he was not unfairly dismissed. The facts are set out in the Extended Reasons which extend to 5 pages of typescript, and Mr Hardaker on behalf of the proposed Appellant complains that the Industrial Tribunal took an erroneous view of the evidence, alternatively an unreasonable view of the evidence and finally a third alternative, an unreasonable conclusion of common facts.

The Tribunal at the preliminary hearing is concerned purely to see whether or not there is an arguable point to go forward. It is not within our remit to substitute our conclusion or our view of what appear to be the facts. The Employment Tribunal is the forum which sees and hears and evaluates the witnesses. We have to discern from their Extended Reasons whether there is any cause to examine further whether they have erred in reaching their conclusion.

In this case, we note that the very experienced Chairman has gone into matters very fully and has directed himself in a very complete way. He sets out in paragraph 1 that the given reason for the dismissal was a belief by the Respondent that the applicant had stolen a substantial length of blue piping, lied to the employers about having been given permission to value the piping and had sought to involve other employees in that lie.

Pausing there, as the Tribunal noted, there was no substantial challenge to the genuineness of the Respondent's belief. The real question for the Tribunal was whether in the circumstances, including the size and administrative resources of the Respondent's undertaking, it had acted reasonably. That question had to be answered in accordance with equity and the substantial merits of the case. There can be no quarrel with that guidance which the Tribunal gave itself.

The Extended Reasons then set out the appeal procedures which had been gone through and paragraph 5 goes on to say that the Tribunal instructs itself that they have asked not only whether the belief in the misconduct of the employee was genuine but also that the belief was held upon reasonable grounds. The Tribunal went into those matters and found the following facts: the Applicant's Assistant Manager, called Clarke, had been present at the check and had told the security officer that he had given permission to remove it; then there was an investigation; the security officers and then the investigator questioned Mr Clarke and formed the conclusion that he was frightened for himself and his family's safety; and in fact he gave the impression to the investigator that he had not given permission. Another employee, Mr Hepworth, had given evidence that the Applicant had gone to his house pestering him and his wife for a couple of hours to sign a letter saying that he had seen Mr Clarke giving the Applicant permission to take the pipe. That was not correct and Mr Hepworth was not prepared to say that it was what happened.

There were further disciplinary interviews, further investigations and Mr Cocksworth decided to dismiss. He believed that the Applicant had taken the piping without permission in circumstances when he knew it was of value to the company and not waste. He also questioned the Applicant's motives in visiting Mr Hepworth and Mr Clarke and to the Tribunal he explained his view that the Applicant had tried to get Mr Hepworth to lie and involve the farm manager by saying that he not been on the site.

In the Extended Reasons, paragraph 17, the issue is identified to be whether or not Mr Cocksworth was entitled, as a reasonable employer, to reject the account of the Applicant that he had permission from Mr Clarke and instead to believe Mr Clarke.

"Paragraph 17

We certainly respect the argument that Mr Clarke's reaction might equally have been attributed to a fear that he could lose his own job for he too was suspended. Nevertheless we do not feel able to say that, in judging the situation, Mr Cocksworth was unreasonable in deciding to believe Mr Clarke, having regard to Mr Clarke's very strong emotional reaction at being challenged as to whether or not permission had been given and bearing in mind Mr Clarke's original equivocal answer to that question."

"Paragraph 18

Furthermore, we think that Mr Cocksworth's decision was to some extent reinforced by Mr Hepworth's unequivocal account of what appeared to be an attempt by the applicant to get Mr Hepworth to support his case in circumstances in which Mr Hepworth would have known that that was untrue. Having said that, as a matter of fact, now having heard Miss Roper, we cannot exclude that there may have been a misunderstanding but the record shows, and the evidence of Mr Cocksworth indicates, that at the time Mr Hepworth's account was unequivocal. By that we mean that there was no misunderstanding about signing the security officer's document on the one hand and an invitation to sign a piece of paper saying that Mr Hepworth had witnessed Mr Clarke giving permission on the other."

"Paragraph 19

In those circumstances, we conclude not only that Mr Cocksworth have a genuine belief in the misconduct of the Applicant but also he had reasonable grounds to sustain that belief."

We do not think that the decision to dismiss was outside the range of responses of a reasonable employer. We can find no fault with the way in which the Tribunal approached the matter, stated the law and advised itself how it should proceed. Accordingly therefore we find no grounds upon which this appeal should go forward and it is dismissed accordingly.