United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR R J RHODES Representative SMALLER BUSINESS ADVISORY SERVICES 34-36 Streetly Lane Sutton Coldfield West Midlands B74 4TU
For the Respondent	MR H FORREST Solicitor HUMBERSIDE LAW CENTRE 95 Alfred Gelder Street Hull HU1 1EP


 


HIS HONOUR JUDGE C SMITH Q C This is an appeal by the employers, J. Townend & Sons Hull Limited, against the decision of an Industrial Tribunal held at Hull on 27 January 1998 of which extended reasons were sent to the parties on 27 February 1998 whereby the Industrial Tribunal held that the Appellants' employee, Mr G. H. Buckley, had been unfairly dismissed and ordered compensation.

As appears from the decision of the Industrial Tribunal, Mr Buckley was dismissed by the Appellants, by their Managing Director, Mr Townend, from his employment as a delivery driver on 9 September 1997 on the grounds of gross misconduct arising from the Appellants' belief that he had stolen a box containing five bottles of whisky from the Appellants. On the previous day (by which we mean 8 September 1997) Mr Buckley's vehicle had been searched by way of a random spot check carried out on all the Appellants' vehicles by employees of a security firm employed by the Appellants and the offending box of whisky was found in the vehicle on one of the top palettes containing a consignment of wine which Mr Buckley was in the process of delivering on behalf of the Appellants to a customer of the Appellants somewhere about the Doncaster Race Course.

After being immediately suspended, Mr Buckley was asked to attend a meeting on the following day by Mr Townend, the Appellants' Managing Director. At the conclusion of that meeting, he was summarily dismissed although told that if he discovered any evidence which would establish his innocence he could come back and be re-employed.

That is no more than a summary of the circumstances as found by the Industrial Tribunal. The Industrial Tribunal, having made detailed, and we consider important, findings of fact in paragraph 3 of their decision, then dealt with the applicable law in paragraphs 4 and 5 of the decision. In particular, as can be seen, they reminded themselves of the principles laid down in BHS Limited v Burchell (1980) ICR 303. They applied those principles to the facts which they found and concluded that the Appellants had not carried out a reasonably sufficient investigation into the allegation of theft against Mr Buckley, and that as a result the Appellants did not have reasonable grounds for believing in Mr Buckley's guilt. Accordingly, they found the dismissal was unfair and awarded compensation.

The Industrial Tribunal, in our judgment, set out their reasons clearly in their own words for concluding that the investigation had fallen short and been deficient into this very serious allegation of theft at paragraphs 6 to 8 inclusive of their decision. Their reasoning in those paragraphs we believe speaks for itself and suffice to say that we have it fully in mind. We also have taken fully into account as important material on this appeal, the Chairman's comments made from her notes of evidence as she has set the same out at pages 24 to 28 inclusive of the bundle which was submitted by her in detail in response to the Order of the Employment Appeal Tribunal on the preliminary hearing.

It is against that background that we turn straight away to the submissions. By way of submission on behalf of the Appellants, Mr Rhodes first of all submitted that the Industrial Tribunal erroneously found as a fact that the Applicant before them, Mr Buckley, had a previous good record. He points out that the Applicant had had a written warning in January 1997 for negligently leaving the keys in a vehicle which was then stolen. Further that he had wrongfully given a small gift to one of the security staff for which no official disciplinary action, even by way of warning, had in fact been taken.

However in our judgment, it is clear from the Chairman's written and detailed comments at paragraph 2 of that document that the Industrial Tribunal had fully in mind the evidence of Mr Townend on both these matters and we find, in the light of the matters contained in that paragraph of the Chairman's comments, that the Industrial Tribunal were entitled to find as a fact on the totality of the evidence before them, that the Applicant, Mr Buckley, did have a good record so that we reject that submission.

Secondly, Mr Rhodes pointed out, again correctly, that Mr Buckley had said in evidence that he had been treated "very fairly" by Mr Townend. It was submitted that in those circumstances the Industrial Tribunal were not justified in criticising the Appellants for not offering an appeal to Mr Buckley despite the fact that the Appellants' own disciplinary code provided for such an appeal. Here again, we find this argument is effectively dealt with by the Chairman at paragraph 3 of her response to the Order of the Employment Appeal Tribunal. We agree with her, and with the Tribunal, that a right of appeal is of considerable importance in a situation of this kind where a serious allegation is made and we can do no better than adopt and endorse the observations of the Chairman in this regard.

For much the same reasons we find we must reject this submission made to us that the Industrial Tribunal in some way made incorrect findings with regard to the failure of the Appellants to interview security staff who were on duty over the weekend in question. Once again, in our judgment, in the light of the Chairman's comments made in paragraph 4 of her document, the Industrial Tribunal had ample grounds for making the findings of fact they did about this aspect of the matter. Criticism was also levelled by Mr Rhodes at the finding made by the Industrial Tribunal at sub-paragraph 3(J) where the Industrial Tribunal noted that Mr Buckley stated in evidence that he had claimed at the disciplinary hearing that he had no opportunity to take the whisky. It was submitted in effect that the Industrial Tribunal should have rejected that evidence as wholly inconsistent with Mr Townend's evidence to the effect that had Mr Buckley so claimed then there would have been a different and more detailed kind of investigation.

However, here again, in our judgment, the Industrial Tribunal were entitled impliedly to lay the blame for their inability to resolve this dispute at the door of the Appellants through the latter's failure to take any notes of what was said at the important meeting on 9 September. Clearly it must be for the employer to make sure a proper record is taken of a disciplinary hearing. Further, we consider that the Industrial Tribunal were justified in finding that the disciplinary proceedings, such as they were, had been conducted within a very short timescale indeed in circumstances where Mr Buckley had not been given sufficient time to consider his position or to take reasonable steps to safeguard his own interests.

We find no indication in the finding by the Industrial Tribunal that Mr Buckley was in effect told "prove your innocence" that the Industrial Tribunal had thereby in any way substituted their own decision for that of the employers. On the contrary, we find that they were entitled to criticise the employer's investigation in the way they did in paragraph 8 of their decision.

Finally, as we understood the submissions by Mr Rhodes, it was submitted that the Industrial Tribunal had erred in law in failing to ask themselves in terms, whether the dismissal of Mr Buckley was within the range of reasonable responses of a reasonable employer and reliance was placed on Boys and Girls Welfare Society v McDonald 1996 IRLR 129, particularly at paragraph 30 of the judgment.

However, in our judgment, it is apparent from the reasoning of the Industrial Tribunal, taken as a whole, that they did apply the correct test here. They carefully and accurately referred to Section 98 of the Act and to the Burchill test. They reached a clear conclusion that, due to what they regarded as serious shortcomings in the investigation, the Appellants did not have reasonable grounds for believing in Mr Buckley's guilt of theft. In our judgment, it is implicit in their reasoning that they were finding that the decision to dismiss was accordingly outside the band of reasonableness. The Industrial Tribunal had found substantial and serious defects in the investigative process, and that the Appellants had taken an inappropriate approach to the investigation by in effect putting the burden on Mr Buckley to prove his innocence in circumstances where he was denying from the first that he had been guilty of stealing.

In our judgment, the Industrial Tribunal applied the correct test to the facts which they as an industrial tribunal jury were entitled to find and their decision reveals no error of law. Accordingly, this appeal is dismissed.