United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DANIEL OUDKERK (Of Counsel) Instructed by: Messrs Eversheds LLP Solicitors Holland Court The Close Norwich NR1 4DX
For the Respondent	MR SIMON REDMAYNE (Of Counsel) Instructed by: Messrs Mears & Durrant Solicitors Somerset House 26 Gordon Road Lowestoft Suffolk NR32 1NL

SUMMARY

Appellant dismissed Respondent for alleged breaches of his managerial duty and/or aiding and abetting fraud. Employment Tribunal held the dismissal process was unfair, his breach of managerial duties was small and it had no proper reason to believe him guilty of aiding and abetting fraud. It further held that in relation to the alleged breach of managerial duty the employer had no genuine belief in the existence of the breach. Appellant appealed asserting the Employment Tribunal had failed to give adequate reasons as to why it had disregarded an apparent confession. Held: the Employment Tribunal held there had been no such confession and had given adequate reasons for so holding. Appeal dismissed.


 


HIS HONOUR JUDGE J R REID QC

1. This is an appeal against a decision of an Employment Tribunal held at Norwich in November and December 2004. The decision was sent to the parties on 20 January 2005. By its decision the Tribunal held that the Applicant, Mr Mack, had been unfairly dismissed by the Respondent, Bernard Matthews Ltd (the Company) but had contributed to his dismissal to the extent of 15 per cent. The Company was ordered to pay £37,985.60 compensation, which sum was subject to the Recoupment Regulations.
2. Although the Notice of Appeal raised originally raised a number of grounds of appeal, the only grounds which remained live at this hearing were grounds to the effect that the decision gave inadequate reasons and was perverse on a key issue of fact.
3. The facts as found by the Tribunal are as follows.
4. Mr Mack was employed by the Company from 23 January 1984 until 24 November 2003. He started as a process worker but at the time of his dismissal he was one of two Sanitation Managers, responsible for the sanitation teams at Factory No.2 at Holton. He worked nights and was usually on site from 10pm to just after 6am Monday to Friday. He had three team leaders reporting to him, one of whom was Mr Cuggy.
5. By the summer of 2003 there was considerable animus against Mr Mack on the part of senior management. This was, as the Tribunal found, because "his face did not fit": he had come up from the factory floor, he had little education and he dealt with matters in a blunt and unsophisticated way. The e-mails before the Tribunal satisfied it that there was a desire, by amongst others Mr Watling, his line manager, and Mr Long, the Company's General Manager, Suffolk, "to deal with" Mr Mack.
6. On 4 August 2003 Mr Mack was told by the Production Manager that Mr Cuggy had been claiming hours worked which he had not worked. Those were hours claimed in respect of driving a Company van at weekends to collect workers and bring them into the factory. Mr Mack investigated the complaint and took statements from those concerned. Mr Cuggy told him he had simply re-booked some hours he had previously worked and for which he had not been paid. Having consulted others Mr Mack decided the explanation was plausible. Mr Mack also discovered that there were photocopy time sheets in relation to drivers hours (TDVI sheets) around which appeared to have his photocopied signature on them. He caused these to be collected and destroyed. He should have sent the result of his investigation to his line manager, Mr Watling but this was not done until he had been prompted. Mr Watling received them on 4 or 5 September. In the meantime Mr Mack suffered an accident at work which required him to undergo surgery on 18 October. He did not return to work before his dismissal.
7. It is important to note that there were two different types of time sheet: the TDVI sheets and ordinary time sheets used in the factory. Ordinary time sheets had to be submitted to Pay Roll by close of office hours on Monday for the workers to be paid in respect of those hours the following Friday. Since Mr Mack did not arrive at work on Monday in time to do this, the practice in respect of weekend working (which was well-known to everyone involved) was for Mr Mack to sign the weekend work sheets in advance so that payment could be timeously made. He could then check the times on the worksheets later against the electronic records from clocking in and if need be adjustments could be made the following week. This system would not work with the TDVI sheets because there was no clocking in or out in respect of the driving time involved. The problem at the core of the case is that none of Mr Grey, Ms Mann, Mr Long and Mr Watling ever appreciated there were two different sorts of time sheet.
8. On 23 October Mr Grey, the Factory Production Manager of Factory No.2, and Ms Mann, the personnel manager, visited Mr Mack at home, the appointment having been made by telephone. Mr Mack was not informed in advance that the meeting was intended to be any form of disciplinary meeting but the Tribunal found that Mr Grey and Ms Mann were trying to establish some participation by him in Mr Cuggy's false claims. The whole tenor of the conversation was that he had wrongly authorised work for Mr Cuggy by pre-signing timesheets. Notes were taken of that meeting and eventually Mr Mack was supplied with a copy.
9. There followed another meeting on 13 November at which Ms Mann was accompanied by Mr Watling. Mr Mack was never, despite requests, supplied with a copy of the minutes of that meeting. At that meeting it was suggested he had not properly investigated the complaint against Mr Cuggy. He was not told whether it was intended that there should be any disciplinary proceedings against him. Mr Mack's evidence was that Ms Mann at that interview clearly did not understand the difference between the TDVI forms and the ordinary man hour forms. The Tribunal endorsed that view.
10. On 17 November he was summoned to a disciplinary meeting. It was alleged that he was in dereliction of his management duties (i) in pre-signing man hour sheets, (ii) in failing to investigate complaints about Mr Cuggy adequately and (iii) in failing to respond appropriately to instructions of senior management. The meeting was conducted by Ms Mann and Mr Watling. Mr Watling had, as the Employment Tribunal found, made up his mind in advance and did not listen to anything Mr Mack had to say. Mr Mack denied signing any TDVI sheets in advance. Mr Mack was never shown any of the witness statements on which Ms Mann and Mr Watling were operating. Some key extracts were read to him. Importantly the TDVI sheets by which Mr Cuggy had made false claims were never produced. Had they been it would have been apparent that none of them bore Mr Mack's signature. They were all photo-copies of a sheet bearing Mr Mack's signature. No one ever investigated or explained where the original sheet was or how the original signature came to be on it (assuming in favour of the Company that there had originally been a TDVI bearing Mr Mack's signature, rather than the signature being in some way copied onto the document).
11. The result of the hearing was that Mr Mack was dismissed. The letter of dismissal gave three reasons for his dismissal: "Pre-signed man hour sheets. Failed to adequately investigate irregularities from in [sic] your department when they had been brought to your attention. Failed to respond to an instruction from senior management in relation to costs within your Department".
12. Mr Mack appealed. Mr Long conducted the appeal despite Mr Mack's objections. The hearing took place on 4 January 2004. As the Employment Tribunal found he had good grounds to object given (i) Mr Long's animus against him; (ii) the fact Mr Long had been involved at the beginning of the investigation and (iii) he was the person whose instructions had allegedly not been obeyed. On the appeal Mr Mack was not shown any witness statements, letters or other documents. The Employment Tribunal found that Mr Long had a closed mind about the whole affair and did not really listen to what Mr Mack had to say. He, in the view of the Employment Tribunal, did not understand or wish to understand the difference between TDVI and ordinary time sheets. Importantly his evidence was that he would not have upheld the dismissal unless he had found all three of the matters proved.
13. The views of the Employment Tribunal as to the original disciplinary findings are as follows: (1) the disciplinary hearing failed to investigate properly the issue of the alleged pre-signature on the TDVIs because it did not appreciate the difference between TDVIs (which Mr Mack said he had not pre-signed) and ordinary time sheets (which he had pre-signed in accordance with custom and practice). (2) Mr Mack had not pre-signed TDVI sheets. So far as the failure to investigate was concerned, Mr Mack had been too gullible, he did belatedly forward the statements he had taken to senior management, and he had taken steps to recover and destroy the TDVIs with his photocopy signature on them when he found out their existence. The disciplinary hearing had made up its mind he had signed the sheets in advance and was trying to cover up for Mr Cuggy's fraud. (3) There was no evidence at all on which the disciplinary hearing could have come to the conclusion that he had failed to respond to an instruction from senior management and the Tribunal did not accept as a matter of fact that Mr Watling believed that.
14. As to the appeal hearing the Tribunal found that (1) the first ground could only be upheld without further investigation on the basis of a fundamental misunderstanding and a failure to investigate the sheet and the circumstances; (2) there were grounds for criticising Mr Mack in relation to the second ground but not for finding gross misconduct; and (3) there was no possible way in which the third ground could be upheld.
15. The Tribunal's overall conclusion was that (on the basis that there was just enough evidence for the employer to have had the belief, based on it being "only too keen to believe something to the detriment of an employee") the Company had discharged the onus on it of showing that it believed Mr Mack had fraudulently pre-signed TDVI sheets and that he had failed properly to investigate matters with a view to covering up his dishonesty. However the Tribunal went on to find that because of all the procedural and other shortcomings in the dismissal process the dismissal was unfair, but because of the deficiencies in his conduct of his investigation of Mr Cuggy they assessed Mr Mack as being 15 per cent to blame for his dismissal and made a deduction accordingly.
16. The appeal centres on a short passage in the Tribunal's findings of fact. At the end of the first interview Mr Mack was given a note of the interview by Ms Mann to sign. He signed it below a line stating "This is a true reflection of our discussion date 23/10/03." In the body of the note is the passage "Agrees pre-signs man hours sheets which authorises overtime for van runs because he cannot be on site 24/7, there is need for these hours to get to payroll." This appears to be an admission by Mr Mack that he pre-signed TDVI sheets. The Tribunal however made no express mention of it, and gave no explicit explanation of the apparent admission. They merely stated that the Company's representatives "carelessly and wrongly attributed the claimant's admission that he signed the man hour sheets with an admission that he had fraudulently signed the van hour sheets in advance". The Tribunal did not, as it might have done, explicitly accept Mr Mack's evidence that he did not read through the note before signing it. The Company says that this was a crucial point and that without an explanation of why the Tribunal disregarded this apparently damning piece of evidence we should conclude either that there are insufficient reasons for the Company to understand why it lost or the decision is perverse.
17. The first point to be made is that the Company did not lose simply because of this finding. On any view the Tribunal would inevitably have held Mr Mack was unfairly dismissed. His dismissal was only upheld on appeal, on the Company's own evidence, because Mr Long upheld all three complaints, and so far as the third was concerned (a) there was no evidence to support it (the solicitor representing the Company at the Tribunal did not, it appears, even attempt to assert that there was) and (b) the ground was not one in which the Company had a bona fide belief. The alleged perversity could only go to the percentage discount for Mr Mack's contribution to his dismissal.
18. Second, it is not enough for the Company to cherry-pick the decision. It has to look at the whole of the decision in the light of all the evidence. What is clear is that from a very early stage Mr Mack was saying that the Company had misunderstood what he accepted he signed. He is recorded at the meeting of 13 November as saying he "never had anything to do with TDV hours". He complained in his letter of appeal against the moving of the goal posts: "Pre-signing of man hour sheets for weekends, this was changed at dismissal to sheets covering weekend van driving which I did not sign as this is a job done by weekend team leaders." When we looks at the whole story it seems to us clear that the Tribunal were discounting the supposed admission, not that they had overlooked it.
19. It seems clear enough to us that the Tribunal were of the view that the supposed admission was a misrecording because of Ms Mann's inability to distinguish between man hour sheets and TDVI sheets. Whilst it might have been neater for the Tribunal to have specifically mentioned a finding that Mr Mack had not read or had not appreciated the manuscript note before signing, in the context it seems clear that this must have been the Tribunal's view. It is easy enough to see how a point, which has now been elevated to great prominence after the collapse of all the Company's other points, did not get mentioned as specifically as it might have been in a decision which had to deal with a whole raft of issues.
20. In our judgment when the whole of the decision is read in its context it cannot be said either that the decision was perverse or that the Company cannot see why it was it lost. The appeal fails and must be dismissed.