United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR CHRIS WHITEHOUSE (of Counsel) Instructed by: Messrs Douglass Simons Solicitors 2 Kenway Road Earls Court London SW5 0RR
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


SUMMARY

UNFAIR DISMISSAL

Reason for dismissal including substantial other reason

The Tribunal failed to deal with an important piece of evidence which might have been crucial to the case. Remitted for re-hearing before a different Tribunal.


 


HIS HONOUR JUDGE REID QC

Introduction

1. This is an appeal from a decision of an Employment Tribunal sitting at London South. The hearing was held on 6 and 7 May of last year and the reserved decision was sent to the parties on 2 June 2009.
2. The unanimous decision of the Tribunal was that the Claimant's claim for unfair dismissal was unsuccessful and was dismissed and that his claim for outstanding wages was dismissed.
3. The case turned on whether or not the Respondent employer had a genuine belief in the Claimant's guilt, in effect, for falsifying his time sheets; if so, whether the belief was based on reasonable grounds sufficient to sustain the belief and whether the investigation that was carried out was reasonable in all the circumstances of the case.
4. Put in very short form, what the Tribunal determined was that the investigation, which was a very broad-brush matter, was sufficient, that the employer had a genuine belief in the guilt of the Claimant and that the belief was based on reasonable grounds sufficient to sustain the belief.
5. The only ground of appeal on which we have felt it necessary to be addressed was the failure of the Tribunal, as it was said, to deal with one of the major points of evidence which arose in the course of the case.

The Respondent's Case

6. The Respondent company is a well-known specialist manufacturer of folding bicycles. The Claimant was an inspector having, in fact, previously been an assembly supervisor who had been subsequently demoted (not because of any lack of engineering skills but because of a perceived deficiency in management skills). What was said was that he had falsified his time sheets in relation to what were known as "lost hours". The payment system was an extremely complicated one. I quote from paragraph 15 of the decision:

"The Respondents have a quite complicated payment mechanism for the different types of employee. We were only concerned with the mechanisms for the inspectors of whom there were five in all. The broad method of calculation is set out for example in Mr Saffery's witness statement at paragraph 12 showing that over each block of eight working weeks there was a calculation of the 'lost hours' the 'clocked hours' and the 'yield hours' which produces a multiplier in a detailed fraction. That multiplier in turn is averaged out over a 24 week period and applied to a base hourly rate at the time fixed at £8.40. That resulted in an actual hourly rate of some two to three times that base hourly rate depending on the particular figures and percentages."

7. Put in broad terms, the hours described as "lost hours" were subtracted from the clocked hours in order to determine the yield which, in turn, determined the rate at which the employee was paid. In very rough and probably inaccurate terms, if the clocked hours were eight but there were four lost hours, then the yield hours would only be four and so his rate of inspecting bicycles for a particular day would be the number of yield hours divided into the number of bicycles inspected.
8. The complaint that the employer made, in round terms, was that the employee, the Claimant, was fiddling his lost hours with the result that he was producing unfeasibly high figures and was showing himself as inspecting bicycles unfeasibly quickly. This, it was said, was something he did over a considerable period, that it was obviously dishonest and therefore, it was said, the employer was entitled to dismiss him.
9. The problem, which the Tribunal nowhere appears to have addressed, is that lost hours were not simply hours while at work devoted to things other than the inspection of bikes but were calculated on a conventional basis. One of the major causes of lost hours was the need to inspect "repair bikes", that is to say, not inspecting new bicycles as they came off the production line but inspecting bicycles returned for repair of one sort or another by customers who had purchased them.
10. The convention, it appeared from the evidence given on behalf of the employer and also given by the Claimant, was that a time of 30 minutes was credited as lost hours for each repair bike inspected but the reality was that the time needed to inspect a repair bike might be substantially less. The effect of that would therefore be to inflate, quite legitimately, the lost hours and so to inflate the yield, i.e. by the time taken per inspection.
11. That the lost hours were a conventional figure was apparent from the documentation before the Employment Tribunal because there were at least two days when the lost hours were greater than the total number of hours during which the Claimant was clocked in.
12. The Tribunal, essentially, took the view that if one looked simply at the figures produced by the employer and accepted the expertise of the employers' witnesses, the inspection times were obviously too quick therefore the "lost hours" must have been dishonestly inflated. Nowhere in their decision do they take any account of the convention which was accepted nor, indeed, it appears from the notes of evidence (which, it has to be said, are remarkably scanty) that the relevant witness for the employer, although accepting the convention, failed to factor that in to his calculation. It also appears that the convention was not factored in by the employer in the course of the disciplinary proceedings.
13. In those circumstances, it seems to us that the Tribunal have simply overlooked a part of the evidence which might or might not be of crucial importance. It is certainly an extremely material part of the evidence. It does not follow that another Tribunal looking at the matter might not come to the same conclusion but we cannot say that this conclusion can safely stand, given the failure of the Tribunal to examine one of the crucial factors on which the Claimant relied.
14. I have said nothing about the further ground of appeal relating to the inadequacy of the investigation. The Tribunal below took the view that the investigation was adequate but there is a separate ground of appeal suggesting that the broad-brush sort of investigation which was conducted could not have been adequate for the purposes of a fair dismissal. That is, clearly, a matter which will be examined again at a rehearing. Our view is that, regrettable though it may be, given the deficiency in the Tribunal's decision, the only proper course is for this matter to be remitted for a rehearing.
15. We have considered whether it would be appropriate to remit the matter to the same Tribunal but we do not think that it would be. The omission to consider the matter is something which goes to the heart of the decision and we think it would be undesirable for the same Tribunal to look again, so to speak, at the same factors but factoring in one more matter.
16. We therefore allow the appeal and direct that the decision be set aside and the case remitted to be reheard by a differently-constituted Tribunal.