United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	GARY MORTON (of Counsel) Instructed by: Messrs Pattinson & Brewer Solicitors 1 - 2 Bridge Street York YO1 1WD


 


JUDGE McMULLEN QC

1. This is an appeal about unfair dismissal from an Employment Tribunal sitting at Newcastle upon Tyne Chaired by Miss T L Green sent to the parties on 9 October. It followed a hearing, which took place over three days and a further day for deliberation following the exchange sequentially of written submissions. These submissions amounted to 50 pages and are before us as well being two rounds of written submissions by Counsel for the respected parties.
2. The written submissions referred between them to over 25 authorities. The vast majority are recorded in the Tribunal's decision. The Tribunal referred to the submissions as lengthy. The Tribunal was asked to consider a complaint of unfair dismissal by the Applicant who had been employed by the forerunner of the Respondent from 5 June 1978 until his summary dismissal on 28 January 2000.
3. At the time of his dismissal he was a customer service manager. The Respondent operates trains on the eastern side of Great Britain providing buffet open to all, a trolley service in standard class and refreshments to first class ticket holders, as part of their ticket price. All these services are managed by the customer service manager. The events upon which this decision is based took place on Sunday 12 December 1999 when the Applicant was the manager in charge of customer services on the 7.30am Newcastle to Kings Cross train. As a result of an administrative error, proper material was not provided upon that train and alternative refreshment arrangements were made for passengers for part of the journey.
4. The Applicant was in a supervisory position over other employees engaged in the customer service operation, namely Claire Gullon and Alan Charlton. There was also some assistance from Mr Kevin Copeland. As a result of some suspicions about the level of takings for that day, an investigation was conducted, during the course of which, the Applicant was interviewed.
5. Following the investigation, a charge was put to the Applicant that whilst working as the customer service manager, he was party to misappropriation of monies belonging to the Respondent, in that transactions of tea and coffee sales by the standard class trolley and the buffet were fraudulently allocated as complementary issues in first class. This charge was read to him on 19 January 2000 during the course of a disciplinary hearing. The Applicant replied, "no comment", in response to each question put to him.
6. The Applicant was told that a summary hearing would take place on the 28 January 2000, which it did. The relevant manager was Mr Dykes. Full notes were available. Mr Dykes considered the evidence, which he had and concluded that the Applicant was not telling the truth and was guilty of gross misconduct. He took account of the Applicant's length of service but dismissed the Applicant on that day; he also dismissed Miss Gullon. Mr Charlton resigned. An appeal was heard by Miss Edgar on 1 March 2000, at this and at the previous hearing, the Applicant was represented by RMT, his appropriate trade union. The appeal to Miss Edgar was not a re-hearing, but the Applicant gave his account himself. The Tribunal found there was no criticism of the conduct of the hearing. Miss Edgar dismissed the appeal, in other words she upheld Mr Dyke's decision. She had previously that day upheld Miss Gullon's appeal and substituted a lesser sanction.
7. Thus it was that the Applicant complained of unfair dismissal before the Employment Tribunal. The Tribunal directed itself in accordance with the submissions it had bespoken and principally directed itself in accordance with British Home Stores v. Burchell [1978] IRLR 379. In its conclusions, it decided that the band of reasonable responsibilities open to a reasonable employer included the sanction of dismissal in the circumstances facing this Respondent. The Tribunal went through the sequence of steps prescribed by Burchell and found that the Respondent genuinely believed that the Applicant had been involved in the fraudulent misappropriation of funds, that there were reasonable grounds upon which to sustain this belief and that the dismissal was fair. The Tribunal considered the correct sanction open to the employer included dismissal.
8. The Tribunal pointed out that the Applicant was in a position of responsibility and trust and accepted the evidence of Mr Dykes, that he had been guilty of a most serious allegation of dishonesty. The Tribunal considered submissions about the disparate treatment of the Applicant and Miss Gullon, and having addressed itself upon the correct law contained in Hadjioannou v. Coral Casinos [1981] IRLR 352 and Securicor Ltd v. Smith [1989] IRLR 356 CA, concluded that the decision of the Respondent was not so irrational that no reasonable employer could have made the decision on the one hand to maintain the dismissal of the Applicant and on the other to allow the continued employment of Miss Gullon. In so doing, it was accepting the submission made by Mr Morton in his written submissions that it was open to the Respondent to deal with the Applicant more severely than Miss Gullon.
9. We have to say that having had read to us the decision of Miss Edgar on the appeals of both these employees, there is a certain lack of clarity, but we have no doubt that the Tribunal inferred that the reason for disparity, which it held was not unreasonable or irrational, was the position of responsibility and trust occupied by the Applicant on that day.
10. On appeal to us four grounds were taken. First, Mr Morton submitted that the Tribunal had not found on the balance of probabilities that the Applicant had been guilty of being a party to the misappropriation of funds. He submits that the findings of the Tribunal are tentative. Nevertheless we find the Tribunal was addressing itself correctly on the Burchell test, which is to examine not whether the Applicant was guilty, but whether the Respondent had a genuine belief based upon reasonable grounds that what was put against him was the basis for the dismissal and came to the conclusion that the employer had formed that belief on such reasonable grounds.
11. This is apparent from the findings at paragraph 29 and the acceptance by the Tribunal of the evidence of Mr Dykes, who was, it will be recalled, required to resolve a dispute about the accounts of what took place on 12 December 1999. In our judgment, by that approach the Tribunal has made sufficient findings to meet the Burchell test and was not required to decide as a matter of formal truth whether the Applicant had in fact been party to the misappropriation of money.
12. The second ground of appeal argued before us, is that the Respondent did not at any time during any stage of the investigatory or disciplinary process put to the Applicant that he had been a party to the misappropriation of money. This submission has no merit. The charge we have cited was given in full to the Applicant on 19 January and at all times he was aware of the essence of the investigation, which was that he with others had misappropriated money of the Respondent. The Tribunal indicated that the mechanics of the investigations of the allegation were not specified but formed the view that the charge quite clearly identified the nature of the allegation, see paragraph 31 of the Tribunal reasons.
13. The third ground of appeal relates to the apparent disparity in treatment between Miss Gullon and the Applicant. We have indicated our view that the Tribunal was apparently basing its rejection of this complaint upon the different status of Miss Gullon and the Applicant. We bear in mind the high standard imposed upon an applicant making allegations of inconsistency, by the judgment of the Court of Appeal in Curicor Ltd v. Smith (see above). The Tribunal has accepted that he failed to reach that standard. Although the reasons are not explicitly spelt out in paragraph 34, we consider that by reference to paragraph 32 (the reference to the position of responsibility and trust of the Applicant) the Tribunal has decided that the disparity in treatment is not irrational.
14. The fourth ground of appeal is that the Employment Tribunal failed to consider whether in the case of alleged fraud, the onus of proof on the balance of probabilities should be more stringent than it is in the case of other complaints at work. Reliance is placed on R. v. The Home Secretary ex parte Khawaja [1984] 1 AC 74 HL.
15. Our attention has also been drawn to Hornal v. Neuberger Products Ltd [1957] 1 QB 2 47 CA and to the judgments of Lord Denning, MR and Morris LJ. It will however be recalled that in BHS v. Burchell at page 308F, Arnold J, in the EAT also referred to Hornal v. Neuberger and said this: "That as we think, had absolutely nothing whatever to do with the proper test of the Tribunal, which had throughout to do that which this Tribunal initially embarked on doing which was to examine the reasonableness or otherwise of the conclusion reached by the employers."
16. It seems to us that that is binding authority since the Court of Appeal has recently revisited BHS v.Burchell for not applying Hornal v. Neuberger flexible standards of proof to an allegation of misconduct in a disciplinary context. In any event, as we pointed out to Hornal v. Neuberger has been reconsidered in In re H (minor) [1996] 2WLR 8HL in the speech by Lord Nicholls at 24 D – H, the gist of which, having considered submissions relating to different standards of proof somewhere between the civil and criminal is this: "I doubt whether in practice it would add much to the present test 12 civil cases and it would risk causing confusion and uncertainty. at present advised, I think it best to stick to the existing established law on the subject and I can see no compelling need for a change."
17. The appeal is dismissed.