National Car Parks Ltd v Amankwa-Dei [1992] UKEAT 162_90_1504

EAT
National Car Parks Ltd v Amankwa-Dei
[1992] UKEAT 162_90_1504 · 1992-04-15
MR JUSTICE KNOX: National Car Parks Ltd appeals from a decision of the Industrial Tribunal sitting at London (South) on the 15th December 1989, sent to parties on the 13th February 1990, that the Applicant Mr Amankwa Dei was unfairly dismissed. The Industrial Tribunal did not deal with compensation.The background facts were as follows. The business of National Car Parks needs no description. Mr Amankwa Dei was employed as the sole attendant at a Clere Street car park in the City of London and had been there since 1981. There was a somewhat simple system apparently in force, the fee structure was as simple as it could be £5.20 was payable irrespective of the time the car stayed in the car park. A ticket was in two parts one marked "D" was handed to the driver, the other part marked "W" was intended to have the registration number of the car written on the back of it, and originally although the "W" seems to have stood for windscreen that had been abandoned and the "W" part was retained by the attendant for record purposes. The particular records were two pieces of paper, one a car registration and ticket check sheet which listed the ticket numbers issued and the car registration numbers corresponding to the ticket. There was another piece of paper called an "unpaid parking weekly return" which recorded the registered number of vehicles which had entered the car park but had not paid the due fee of £5.20.On the 13th June 1989 two security officers, a Mr Graham and a Mr Lockwood visited the car park and checked the vehicles there. There were 80 vehicles there, 65 were contract parking and season tickets and therefore no problem arose with regard to them. The 15 balancing cars were not apparently on any supporting documentation.The Industrial Tribunal's findings were that Mr Amankwa Dei was asked to produce his list of unpaid vehicles. He said that he had not had time to complete the appropriate document but produced a piece of paper upon which the registered number of most of the vehicles concerned were recorded. He said it was his intention to copy those onto the appropriate document in due course. The list had two vehicles missing in the sense that there were 13 listed but two were not. A copy was taken by Mr Graham of that list, the original was lost in mysterious circumstances later that day, but Mr Graham's copy survived and was before the Industrial Tribunal.The till was checked and the Industrial Tribunal makes no finding how much there was in it beyond saying that there was £11.00 in excess of what should have been there. There was also a £5.00 note on the floor but nothing turns on that.Mr Graham and Mr Lockwood then, having no authority to suspend, went to get that authority and got it and Mr Amankwa Dei was thus suspended on the 13th June. He was also searched we assume that day and found to have £150 on him. Nothing was made of that in argument before us. The security officers, Mr Graham and Mr Lockwood stayed in the car park and interviewed returning drivers and recorded their names and addresses and what was said to be their comments about whether they had got a ticket and whether they had paid, together of course with the registration numbers of their respective cars.The investigation proceeded with a disciplinary hearing which appears to have occurred on the 16th June, 3 days later, which was conducted by a Mr Yeaman, the Area Manager and he decided on dismissal. There was a right of appeal, which was exercised. The date of the hearing is not contained in the Industrial Tribunal's decision, it was before a Mr Worsley, who in company with Mr Graham, appeared as a witness at the Industrial Tribunal. The Industrial Tribunal was favourably impressed by Mr Worsley. They recorded of him that they formed a most favourable impression and were quite sure that he was a truthful witness, but they said he did not have sufficient material before him to reconsider the matter when it became the subject of an appeal before him. In addition to those two witnesses that I have mentioned, Mr Amankwa Dei also gave evidence.The Industrial Tribunal stated the facts, in somewhat more detail than I have recited, quoted a passage, almost verbatim from British Home Stores v. Burchell [1978] IRLR 379 and stated their conclusion that there had been insufficient investigation by the employers. The particular passages which contain those conclusions are as follows. In paragraph 14, they refer to the fact that there was not in evidence before them a contract of employment or the manual that they were given to understand was issued to car park attendants by the National Car Parks Company and they said this:-
"It seems that Mr Graham formed an almost immediate conclusion that the applicant had been dishonest in the handling of the respondents' money and we find it strange that both he and Mr Lockwood went to the Divisional Office leaving the applicant on his own."
Somewhat later they say in relation to the returning motorists, whose registration number, addresses and comments were recorded by Mr Graham:
"It is somewhat surprising that at least one of these motorists was not interviewed further. Particularly as security were supposedly investigating the matter further. We formed the opinion that Mr Graham was premature in jumping to his conclusion."
They then turn to the disciplinary hearing and the appellate hearing before Mr Worsley. As regards those, they said this:
"Mr Yeaman and Mr Worsley had before them the notes that Mr Graham made of the responses of the various motorists who had come into the car park with allegedly paying their dues. They did not have before them so far as we are aware in the case of Mr Yeaman and certainly in the case of Mr Worsley the car registration and ticket check sheet for 12 June. Had either of these gentlemen compared the car numbers with the annotated notes as the driver emerged made by Mr Graham the discrepancies which Mr Bermingham unearthed in cross-examination would have been apparent."
It appears that what that is aimed at is that there was before the Industrial Tribunal the registration and ticket check for the 12th June, the day before the critical day when the examination took place, that there was a degree of overlap between the numbers of the cars on that check sheet for the 12th June and the list of cars that was taken by Mr Graham of the returning motorists, and a degree of discrepancy between what the motorists were recorded as having said in relation to ever having had tickets, and the apparent deductions that is to be drawn from their being on the list for the 12th June, which is of course a list of people who have had tickets and paid. That fairly clearly, is the inwardness of the paragraph that I have just read from the Industrial Tribunal's decision.Their final conclusion is in the last paragraph of their decision, they said this:
"We bear in mind that the applicant had worked for many years for the respondent Company and we have heard nothing to his detriment in the past and we find it strange with this record that the Company did not see fit to investigate further."
They finally say they cannot accept that Mr Yeaman can have come to a proper conclusion or have entertained reasonable belief in the light of the matters which were not investigated and which any reasonable employer in their opinion could and should have investigated before even considering a disciplinary hearing.Then there is the passage that I have already read about Mr Worsley's favourable impression and the insufficiency in their view of the matter before him and predictably in the light of all those findings they concluded that the manner in which the disciplinary hearing and the subsequent appeal were handled were not fairly dealt with in all the circumstances and they found the dismissal unfair.The Notice of Appeal raises a list of grounds upon which the National Car Parks Limited relies in showing that the decision erred in law. There are five of which the last is really a resumé of the earlier ones. They none of them are in fact propositions of law, they are as follows: one, that the Tribunal disregarded the evidence that the Applicant had failed to follow the established procedures and complete the forms provided by the Respondents. That is a matter of speculation as to whether the Tribunal disregarded the evidence. The evidence is recorded of what Mr Amankwa Dei said about not filling in the forms that he proposed to fill in later. It seems to us to be a pure question of fact as to whether or not they were right to come to the conclusion that they did reach. It is a matter of judgment for the Tribunal. Secondly, it is said that the security officers had found grave irregularities in the documentation and the cash receipts and the Applicant failed to give any explanation. That again is not a question of law, in fact it is perhaps not altogether an accurate summary of what the Industrial Tribunal found as facts because the amount of questions that they recorded Mr Amankwa Dei as having had addressed to him were somewhat limited, but we do not propose to go into the detail of that because it is again purely a question of fact rather than a question of law. Thirdly, the security officers interviewed the departing car owners who stated that they had paid the Applicant. The Tribunal has ignored the fact that the Applicant failed to account for the money received. There again, it does seem if we are to take what has been put before us by way of evidence before the Industrial Tribunal literally that it is not entirely in accordance with that documentary evidence, but however that may be this is again a pure question of fact whether the Tribunal has attached the proper weight to such evidence as there was about payments having been received by Mr Amankwa Dei and not having been accounted for by him. One does not know how much of the departing car owners' payments had in fact found their way into the till which had £11 more than it ought to have had. What amount it ought to have had is shrouded in a degree of mystery.Finally, it is said that the Tribunal purported to follow the dicta of Burchell's case, yet they did not do so. It is said there were ample grounds for holding that there were reasonable grounds for suspicion and that the Appellants had reasonable grounds for believing that the Applicant was guilty and that thereafter they conducted a reasonable investigation. It may well be that that is entirely accurate so far as that last sentence is concerned, in other words this was a case in which an Industrial Tribunal had to weigh the evidence that was before it and come to a conclusion. It may well be that there were some grounds for suspicion, it may well be that the Appellants had some grounds for believing that there had been dishonesty. It may well be that there was some investigation, undoubtedly there was some, but whether it was enough to make the treating of Mr Amankwa Dei's conduct a sufficient reason for dismissal is a matter for judgment on the evidence that was before the Industrial Tribunal and that is essentially not a question of law. We have to limit our activities under Section 136(1) of the Employment Protection (Consolidation) Act 1978 to questions of law which arise in proceedings under (inter alia) that Act and we can see no basis for us to interfere. The dissatisfaction of the National Car Parks Limited seems to us to be a dissatisfaction on the factual findings of the Industrial Tribunal and that is not a matter that we have any jurisdiction to interfere with.The appeal will be dismissed.