United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr G Morton (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE PETER CLARK

1. The Appellant, Miss King was employed by Her Majesty's Custom & Excise, the Respondent from the 1 December 1986 until her dismissal on grounds of gross misconduct on 8  February 1999. She worked as a Data Editor in Southend.
2. The background to her dismissal was that she and her partner, Mr Kitto, made a trip to Majorca and back on 25 and 26 October 1998. They took with them two suitcases, one inside the other, and a substantial quantity of cash in the possession of Mr Kitto. In Majorca they bought 34,800 Superking cigarettes, duty paid. On their return, they were stopped by Customs Officers, who did not accept that that quantity of cigarettes was for their personal use. Customs guidelines indicate a maximum of 800 cigarettes per person for personal use.
3. The Appellant's employer, the Respondent, carried out an investigation, leading to disciplinary proceedings against her. The charges set out in a letter dated 18 December 1998 were as follows:

(1) That she attempted to import into the country an amount of cigarettes in excess of the allowances, 34,800 to be precise: this amount was clearly not for her own consumption.

(2) That she went on a trip to Majorca for two days with a large amount of cash and an empty suitcase with the intention to bring back a large amount of cigarettes which were contrary to the allowances.

(3) That she breached the departmental code of conduct of honesty by her actions.

4. Ultimately, she was dismissed on the ground that the Respondent believed that she had knowingly been involved in the importation of cigarettes other than for personal use, and that such actions had undermined the necessary trust and confidence in her as a public servant, employed by the very Government Department charged with preventing what was described before the Employment Tribunal as 'bootlegging'. An internal appeal failed.
5. She brought a complaint of unfair dismissal which came before the Stratford Employment Tribunal, (Chairman: Mr J S Richards) on the 26 and 27 July 1999. Before the Tribunal she was represented by Mr Kitto, who had no experience as an Employment Tribunal advocate/representative.
6. By a decision promulgated with extended reasons on 6 September 1999, the Tribunal dismissed her complaint. They approached the case in this way:

(1) The question for them was not whether the Appellant was guilty of the misconduct alleged, but whether the Respondent honestly believed in her guilt. Accordingly, the fact that proceedings before the Luton Magistrates Court for the return of the cigarettes, confiscated by Customs, were discontinued against her (but not Mr Kitto) was irrelevant.

(2) Applying the 'neutral burden of proof', it was for the Tribunal to decide whether the Respondent's belief was based on reasonable grounds, following a reasonable investigation.

(3) If so, did the sanction of dismissal fall within the range of reasonable responses?

7. Any doubt but that that is the correct approach in law, applying Section 98 of the Employment Rights Act 1996, has been swept away by the Court of Appeal decision, in the conjoined appeals of Foley –v- The Post Office; and HSBC Bank –v- Madden. The Times, 18 August 2000.
8. Applying that approach, the Employment Tribunal concluded:

(1) That the Respondent had established their reason for dismissal, that is a reason relating to the Appellant's conduct, a potentially fair reason for dismissal.

(2) The Respondent had carried out a full investigation, and had reasonable grounds for their belief in the Appellant's misconduct

(3) Dismissal fell within the range of reasonable responses open to the employer, bearing in mind the Appellant was a public servant, employed by the Respondent department, charged with the responsibility of ensuring compliance with import controls and with clear standards of conduct and responsibility for staff.

9. Against the Employment Tribunal's decision this appeal has been brought. The question for us at this preliminary hearing is whether the appeal raises any arguable point or points of law which ought to proceed to a full appeal hearing. Our jurisdiction is limited to correcting errors of law by the Employment Tribunal .
10. In support of the appeal, Mr Morton, who appears on behalf of the Appellant under the ELAAS pro bono scheme, has submitted that the Tribunal was wrong to disregard the proceedings in the Luton Magistrates Court. It appears that where tobacco is confiscated in the circumstances which arose in this case, it is open to the person or persons claiming ownership to that tobacco to apply to the Magistrates Court and, if unsuccessful, to thereafter to appeal to the Crown Court for the return of the goods. In this case it seems that Mr Kitto alone made the application, which was unsuccessful both before the magistrates and in the Crown Court on appeal.
11. Mr Morton submits that the Respondent relied upon that part of its disciplinary code which renders it a disciplinary offence to commit any offence under any enactment for which the department is responsible. He submits that no such offence was made out in this case, and accordingly, the reason advanced by the employer was not made out. That is not how we understand the case advanced on behalf of the Respondent, and accepted by the Employment Tribunal.
12. It was their case that the Appellant was involved in a joint enterprise to bring in a large number of cigarettes which were not for personal consumption and that bearing in mind her employment with Customs she showed a degree of lack of honesty and integrity which undermined the necessary mutual trust and confidence which underpins any employment relationship.
13. On that basis, the Tribunal found that the employer reached a permissible conclusion in dismissing her for the reasons given, and the question for us is whether that in turn was a permissible finding by the Tribunal. We are satisfied that it was, and we see no arguable point of law on this basis.
14. Further, there is an affidavit before us, sworn by the Appellant, relating to the conduct of the Tribunal proceedings. Two points are taken: first it is said that the Respondent only delivered their bundle of documents on the Friday before this Tribunal hearing which took place on the following Monday. That is less than the 7 day time limit, which as a matter of practice, is usually applied in the Tribunal. We enquired about this, and it appears that only one document of three pages was new to the Appellant, all other documents having been disclosed to her at an earlier stage in the disciplinary proceedings.
15. In these circumstances, we are not satisfied that the Appellant was put at a material disadvantage in the conduct of her case before the Tribunal. Secondly, it is said that the Chairman and Counsel for the Respondent, engaged in banter throughout the hearing, sometimes both of them laughing at Mr Kitto's amateur efforts to represent the Appellant. At one point, it is said that the Chairman was sucking his cheeks together and staring with bulging eyes at Mr Kitto, so as not to laugh out loud.
16. That affidavit was put before the Chairman who responded by a letter dated 21 March 2000. Quite simply he rejects the suggestion, both that he engaged in banter with the Respondent's Counsel, and that he was laughing at Mr Kitto's representation. We accept the Chairman's account, but even had we accepted the account of the Appellant, it does not seem to us that that would be sufficient to give the appearance of bias against the Appellant to an objective bystander, sitting in court with knowledge of the case but no interest in the outcome.
17. In these circumstances, and for these reasons, we have concluded that this appeal raises no arguable point of law and accordingly it must be dismissed.