United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARK SAHU (of Counsel) Messrs Shah Solicitors 168 Greenford Road Sudbury Hill Middlesex HA1 3QZ
For the Respondent


 


MR RECORDER BURKE QC

1. This is the Preliminary Hearing of two appeals arising out of the dismissal of Mr Shah's complaint that he was unfairly dismissed by the Employment Tribunal sitting at London North, Chaired by Mr Etherington and sent to the parties with summary reasons on 24 November 1999. The employee appeals against that substantive decision. He also appeals against the subsequent decision of the Chairman of the Employment Tribunal not to provide extended reasons because the application for extended reasons had been made out of time and no explanation which would justify the exercise of the discretion in Mr Shah's favour to extend time had been put before the Tribunal.
2. The substantive appeal first came before this Appeal Tribunal on 3 November 2000. The Tribunal on that occasion, presided over by Mr Justice Charles, adjourned the Preliminary Hearing so that both could be brought on together and they have come on together before us. It is clear from the decision of the Employment Appeal Tribunal on that day that it was also contemplated that this Tribunal would be asked to consider proceeding on the basis of the summary reasons alone.
3. We today have had the advantage of argument on the merits of the substantive appeal from Mr Sahu on behalf of Mr Shah. At the outset of the Hearing today we suggested to Mr Sahu that, if we were to consider the appeal against the refusal to provide extended reasons and then were to allow that appeal, the Tribunal would have to produce extended reasons a long time after the actual decision and then Mr Sahu would have to come back to this Tribunal for a Preliminary Hearing in relation to the substantive appeal on the extended reasons; and if he got through that, then any effective appeal was some way down the track, both in terms of money and in terms of time. We suggested in those circumstances that we would be prepared, if Mr Sahu was willing to accept our suggestion, to proceed on the basis of granting the application to proceed with this Preliminary Hearing on the basis of the summary reasons, in which event it would unnecessary for us to proceed at all with the appeal against the refusal to provide extended reasons. Mr Sahu with good sense accepted the suggestion that we were putting forward; and we have therefore proceeded not to hear any argument on the appeal against the refusal to provide the extended reasons, which appeal will be dismissed and instead to hear as a Preliminary Hearing, based on the summary reasons, the substantive appeal.
4. The facts, insofar as it is necessary to recite them for today's purposes, can be briefly set out. Mr Shah was employed by the employers as a Lorry Driver. He had been employed by them for 13 years when his employment came to an end in August 1999. Mr Shah was based at the employer's Park Royal depot and worked nights on a delivery contract for a client of the employers, namely Spicers, the job involved collecting items from customers' premises and delivering them as required. On a night in July 1999, Mr Shah drove his lorry to Spicers' depot where it was to be loaded by Spicers' employees, Mr Shah having no responsibility connected with loading or the contents of what was loaded. On that night, the Tribunal found, a boxed but unpackaged shredder machine was found on Mr Shah's lorry by a security officer of Spicers. The employers were informed of this. They were told that there was evidence that Mr Shah had been seen taking a boxed item and putting it on the palette which was then loaded into his van. Mr Dillon, the distribution manager of Spicers, confirmed that Mr Shah had admitted placing the item on the palette with intent to steal; and there was a similar statement from the security officer which Spicers produced to the employers. The employers investigated this matter and instituted disciplinary proceedings at which it is accepted by Mr Sahu that Mr Shah had an opportunity to put forward his case. Indeed, the Tribunal set out how Mr Shah had subsequently asserted, subsequent to the events itself, but as part of the disciplinary proceedings no doubt, that he might have picked up the shredder in error and at the disciplinary proceedings said that he had been set up.
5. There was no doubt that the reason for the dismissal was misconduct. The Tribunal directed itself along the lines of the principles laid down for conduct cases in the case of British Home Stores Ltd v Burchell (1980) ICR 303 and proceeded to find that the employers properly formed the belief that Mr Shah had been guilty of attempted theft, that they had carried out a reasonable investigation and that the decision to dismiss in the circumstances was a reasonable decision. Mr Sahu has put forward before us a number of arguments which we are going to group together under the heads to which we will now refer.
6. At the hearing before this Appeal Tribunal Chaired by Mr Justice Charles last year, that division of this Tribunal mentioned its preliminary view on paper that Mr Shah faced an uphill if not vertical task in seeking to persuade this Tribunal that this was an appropriate case with which to proceed on the basis of summary reasons, but we have proceeded with the case on the basis of summary reasons and have taken care to consider the substantive grounds of appeal which Mr Sahu has submitted are such as should persuade us to allow this appeal through to a full hearing. It is fair to say immediately that we are not so persuaded.
7. The first way in which the appeal was put is this. Mr Sahu points to the Tribunal's direction to itself in relation to the case of British Homes Stores Ltd v Burchell principles. He identifies the following sentence:

"For employers to dismiss they must have a genuine belief on reasonable grounds after reasonable investigation that the employee committed the offence in question. If the Tribunal finds that they had that belief and having regard to the investigations were entitled to hold that belief then the dismissal will be fair."

Mr Sahu submits that the issue for the Tribunal is not whether the employers have a genuine belief on reasonable grounds but whether they have a reasonable belief. In our judgment there is no arguable criticism to be made of the Tribunal's decision in this area. We see the sentences which we have cited as being an entirely appropriate summary of the Burchell principles with which we are familiar, which are set out for convenience in paragraph 1453 of Volume 1 of Harvey and which we do not propose to recite. We see no substantive difference between having a belief on reasonable grounds and having a reasonable belief.

8. Next, Mr Sahu in a number of ways attacks the Tribunal's conclusion that there had been a reasonable investigation. Firstly, he submits that what the Tribunal did in paragraph 6 of the summary reasons was not to consider the investigation as a whole but to consider only whether Mr Knight, who both carried out the disciplinary proceedings and was the dismissing manager, was in a position of conflict or had an open mind. However, that is not what the decision reveals. The finding of the Tribunal is not only that Mr Knight had an open mind but also that he was alert to identify and consider properly any explanation advanced by the Applicant; and we see no basis on which it could successfully be argued that the Tribunal had confined its examination of the investigation and disciplinary process only to the independence or otherwise of Mr Knight or of Mr Gillett who conducted the appeal.
9. Next, it is submitted that the documentation which the employers had received from Spicers, setting out what Spicers' employees had themselves seen or what had been said by Mr Shah to one or more Spicers employees, were inconsistent in that there was reference in one or more of them to admissions but in one or more of them to actual observation of what Mr Shah was doing. We have not been shown the documents but we can see nothing in the Tribunal's decision which indicates an inconsistency and see no reason why these documents should be internally consistent when they are purporting to describe different things, on the one hand observations and on the other hand admissions.
10. A further criticism which is made is that the witnesses who provided this information to the employers were not called live to give evidence to the Tribunal. That submission misunderstands the issues before the Tribunal. The employers did not set out to prove to the Tribunal that Mr Shah had committed an offence of theft but only that they satisfied the Burchell test in that they had a belief or genuine belief in the misconduct alleged, that that was a reasonable belief and was based on a reasonable investigation, and that it was reasonable in the circumstances to dismiss. If an employer limits what he seeks to prove to that, as he is entitled to do, then he does not have to call the primary witnesses who were providing material, either orally or in writing, on which the employers relied (i) for making up their minds as to what had happened and (ii) on whether it was reasonable or not to dismiss in the light of what the employers believed had happened, and it is common practise for employers to decide not to seek to go further than that, as they are entitled to do and as these employers did.
11. Next, it is submitted that there had not been a proper investigation because Mr Shah was not given an opportunity to state his side of the story during the investigation. When we pressed Mr Sahu, we hope not unfairly, about this submission, he accepted that Mr Shah had had an opportunity, which he had taken, to put forward his case at the disciplinary proceedings but that the criticism which he was making was that he had not been asked to give his side of the story as part of the investigation by the employers before the disciplinary proceedings actually took place. It goes without saying, of course, that at the disciplinary stage the employers were bound to give Mr Shah an opportunity to state his case, which they did, and the opportunity having arisen, it was one which he took, but we see no basis on which it can be arguably said that the investigation should have been found to have been unfair because Mr Shah was not spoken to about these matters at an earlier stage. The employer may or may not decide in the course of the investigation to talk to the person accused. He may decide it is in the best interests of the investigation not to do so, it may not occur to him to do so. Looking at the matter in the round, we see no basis for criticism of the Tribunal's decision in this respect. Similarly we see no basis for criticism of the Tribunal's decision in the suggestion that the investigation was defective because the employees of Spicers who had provided information to the employers were not themselves seen and interrogated in more depth. That was very much a matter for the Tribunal and not an area in which arguably this Appeal Tribunal is entitled to interfere.
12. We say the same, without going into detail, about the other criticisms of the investigation which Mr Sahu has made either orally or in his skeleton. Whether put under the heading of error of law, or put under the heading of absence of evidence to support the findings, all of those arguments we have considered; and in our judgment they do not amount to an arguable ground of appeal.
13. Finally, we should refer specifically to Mr Sahu's submission that there was no evidence before the Tribunal on which they could find that Mr Knight was alert to identify and consider properly any explanation advanced by the Applicant. No doubt that attitude of Mr Knight is not recorded in a contemporary document; and we are told that it does not appear in the notes of the disciplinary procedure. It would be an odd procedure in which the documents carried self serving words such as 'I have considered properly the Applicants explanation' or words to that effect. Mr Knight gave evidence to the Tribunal. What the Tribunal had to do was to assess what Mr Knight said and the way he said it. They were entitled to form a view of what he was telling them; and they did so. We see no basis on which, arguably, their finding as to his attitude could be criticised.
14. Taking into account all the grounds that have been put forward we do not regard this ca se as one in which there is an arguable ground of appeal. The appeal is therefore dismissed.