United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Miss T S Bernard THE APPELLANT IN PERSON


 


MR COMMISSIONER HOWELL QC

1. In this appeal which is before us today, for preliminary hearing, Miss Tracey Bernard seeks to have set aside as erroneous in law, the decision of the London Central Employment Tribunal sitting on 1 November 2000, which is set out in extended reasons sent to the parties on 6 February 2001 at pages 6 – 10 of the appeal file before us.
2. The proceedings before the Tribunal had been brought by Miss Bernard against her former employers, Abbey National Plc, arising out of her dismissal on 29 February 2000 that was for the stated reason that she had failed in her application for employment some 3 years earlier to disclose the fact that she had an unspent criminal conviction; and had declared as a fact that she did not have any such conviction. She brought proceedings against the Abbey National alleging that her dismissal on that ground had been unfair and had been discriminatory. However it was later clarified and agreed at the Tribunal that the allegation of discrimination was not an allegation of sexual or racial discrimination, but simply of unfair treatment in the manner in which she had been disciplined and dismissed.
3. According to the information given to the Respondent's disciplinary Tribunal by the police, Miss Bernard had in fact had one conviction in June 1992, which remained unspent at the date of her application. The internal disciplinary Tribunal appears to have gone on the basis of verbal information to this effect, given over the telephone to their own investigators by the police as to what was contained in police records. There is no dispute that Miss Bernard did have a conviction for an offence involving dishonesty on her record, which remained unspent and related to a conviction in June 1992. It has later transpired that the details given verbally over the telephone by the police officer to Abbey National's fraud investigator misstated the actual nature of that offence, referring to it as "theft and deception" when in fact, according to information Miss Bernard has later obtained and has produced to us, it was an offence referred to as "handling", which we understand to be an offence of dishonesty under the Theft Act involving handling stolen goods.
4. That discrepancy was not however, within the knowledge of the Respondents at the time of their disciplinary proceedings and dismissal of Miss Bernard. Nor was it within the knowledge of the Tribunal at the hearing on 1 November 2000, when as Miss Bernard told us, she had attended and given evidence. To the Tribunal she had said that she was not sure what that conviction had been for, but wished to contend that it was not for theft and deception as at that time suggested against her by the Respondents. However as she acknowledged in argument before us, she did not seek any adjournment of the Tribunal proceedings in order for more complete details of the true nature of the offence, for which that conviction still stood, to be obtained.
5. On the evidence before them, the Tribunal unanimously decided that the originating application was dismissed and that Miss Bernard's dismissal for having falsely declared that she had no unspent conviction at all, was reasonable for the purposes of section 98 Employment Rights Act 1996. They recorded in particular in paragraph 2 of their extended reasons what the reason put forward by the Respondent for her dismissal was:

"she was fairly dismissed for having falsely declared that she had no unspent criminal convictions when she was applying for the post"

That was followed by the Tribunal recording as a finding of fact in paragraphs 3 - 4 that,

"The Applicant, who was born in October 1972, was convicted in June 1992 of theft and deception and was fined. By law the convictions would have to be treated as spent after five years. In January 1997, i.e. shortly before the five years had elapsed, she applied for a job with the Respondent as a Customer Service Agent and on her Job Application form in respect of the question "Do you have any unspent conviction?" answered "No" and signed the form. She was offered the job and started work for the Respondent in that capacity."

6. Some 3 years after that, as recorded by the Tribunal in paragraph 7 of their extended reasons, there was a completely unconnected investigation going on within the Respondent into irregularities in the handling of some clients' accounts. That investigation showed that the Applicant herself had played no part whatever in what was done; and indeed it is a matter of record in the Tribunal's Statement of Reasons that the Applicant, throughout her time at the Abbey National, carried out her duties well, was popular with colleagues and customers and that her honesty and integrity were never called in question. However, the investigation being carried out into the irregularities did, unhappily for Miss Bernard, reveal the fact from the police files that she did have this one unspent conviction still on her record and so the police informed the Respondent of that fact. That led to her being suspended and an investigation being carried out by the Respondent, which culminated in a disciplinary hearing on 29 February 2000, carried out by Miss Burt, the Human Recourses Manager. At the conclusion of that, the decision was taken by Miss Burt that Miss Bernard had to be dismissed for the false declaration in her original job application and it was the reasonableness from this of that decision that was the principal issue the Tribunal had to determine.
7. As the Tribunal recorded, it was not for them to decide whether they would have personally dismissed the Applicant if they had been sitting in the place of the Respondent's managers at the relevant times. Their task was the different one of considering whether the Respondent had acted reasonably or unreasonably in dismissing her for the stated reasons, applying the established law that in determining such questions of reasonableness, the Tribunal are not to substitute their own view of what they think the right course would have been, but merely to determine whether the employer has acted within the band of reasonable responses for an employer, given the information and knowledge that the employer had at the time the decision was taken to dismiss. The Tribunal directed themselves impeccably in paragraph 16 of their extended reasons as to the legal tests that they were bound to apply in determining that difficult issue on the facts of this case. As they recorded, their conclusion was that at the time when Miss Burt reached her decision to dismiss Miss Bernard, she, that is Miss Burt,

"genuinely believed that the Applicant had, both at the time when she was applying to enter the Respondent's employment and again later, falsely declared that she had no unspent criminal convictions."

8. They further concluded that, at the time those decisions were taken by the management, the Respondent had carried out as much investigation as was reasonable into the circumstances and that there were reasonable grounds for believing as a result of that investigation that the Applicant was guilty of the misconduct that was alleged. They then expressed their conclusion that Miss Burt, having considered the range of possible sanctions open to her for misconduct of that nature when found established, had taken into account the evidence that, as Miss Bernard pointed out to us was the case, she had only been young when she committed the offences and had worked for the Respondent for three years, during which her performance had been assessed as above average and there had never been the slightest ground for any suspicion of dishonesty or misconduct on her part in the way she had actually carried out her duties. Then they recorded,

"On the other hand, we have to bear in mind that the Respondent is a bank which is subject to the stringent controls of the Financial Services Authority and that the nature of its business is such as to make it require the highest standards of honesty and integrity from its employees in the interests not only of itself but also of those of its clients."

Then the Tribunal in paragraph 18

of their extended reasons recorded that,

"Having carefully weighed the evidence, whilst we consider that we ourselves might not have dismissed the Applicant in the circumstances, we cannot say that the Respondent acted unreasonably in doing so; in our view, it has to be held that dismissal was within the range of reasonable responses open to the Respondent."

9. For those reasons the Tribunal held that the application had to be dismissed. Against that decision, Miss Bernard seeks to appeal on grounds set out in her own words in her Notice of Appeal dated 1 January 2001, and an annexed document amplifying the grounds on which she seeks to pu rsue the appeal.
10. For practical purposes we need focus only on the principal ground that she has put forward in those documents and in oral argument before us, which was that the nature of her conviction as we have already indicated had been misstated. There is no reason to think that this had been done other than accidentally, by the police officer who supplied the information to the Abbey National's investigator over the telephone, before the disciplinary proceedings were embarked on. There is no dispute as we have said that there was such a conviction in June 1992, or that it was for an offence of dishonesty under the Theft Act, which resulted in a fine. However, what has transpired following Miss Bernard's own further investigations and obtaining a computer record of her actual conviction is that the nature of the conviction was somewhat different: it was not recorded as an offence of "theft and deception" but only of one of "handling". As she emphasised to us, she had only been a teenager at the time of this offence. It was all a long time ago and when she had completed her application form for employment she had for practical purposes regarded it as something in the past and had genuinely regarded it as not something that needed to be disclosed at that distance in time. However, as she very fairly conceded in argument before us, the task for us is not to pronounce whether we would have dismissed her for failing to disclose this or whether we thought the decision had been harsh or unfair. It is the much more limited task of determining whether there was any error of law on the part of the Employment Tribunal in the decision they reached on the case, which they plainly regarded as a difficult one on the evidence, that the employer's conduct had been within the band of reasonable responses given the information available to it and the belief that it had at the time that the decision to dismiss was taken.
11. As recorded in the Tribunal's extended reasons to which we have already referred, the actual reason for dismissal was Miss Bernard's having falsely declared that she had no unspent criminal convictions at all when on any footing that was untrue. In holding that the dismissal by a bank for that sole reason was within the band of reasonable responses for an employer in the circumstances, we think it fair to conclude that the Tribunal's decision was based principally on the fact of failing to declare an existing and unspent conviction for an offence involving dishonesty, rather than for the precise details of the offence itself. As Miss Bernard, we think accepted in the course of her argument, which she presented in a very open and straightforward manner, there was really no evidence before the tribunal which could invalidate the findings of fact that they recorded and the conclusions they reached on the issue of reasonableness as a matter of law. It is not an error of law for a Tribunal having heard the evidence before it to proceed to determine the case on the basis of that evidence; and it does not turn a decision properly reached on the basis of the evidence before the Tribunal at the time into an unlawful or erroneous decision if further information is later brought to light which casts doubt on one aspect of the facts as put before and found by the Tribunal.
12. We therefore have to reach the conclusion that there is no arguable error of law in the decision of the Tribunal reached in this case as set out in the statement of reasons of 6^th February 2001. Even though we fully accept that either the employers, or the Tribunal, or both, might well have taken a different view of the position if the full information had been before the employers at the disciplinary hearing which led to the decision to dismiss, that is not a matter for us. Our task is only to determine whether there was any arguable error of law in the Tribunal's decision. We have been unable to conclude that there was, and we accordingly now dismiss this appeal.