Kelco Ltd v Casey [1992] UKEAT 525_90_0810

EAT

Kelco Ltd v Casey

[1992] UKEAT 525_90_0810 · 1992-10-08

MR JUSTICE KNOX : These are an appeal and a cross-appeal from a decision of the Industrial Tribunal sitting at Liverpool on 18 June and 18 July 1990 which was sent to the parties on 20 August in which the Tribunal by a majority, decided that the Applicant before them, Mr Casey, was unfairly dismissed by his employers Kelco Ltd ("the company") and by a unanimous decision awarded Mr Casey a sum of £3,272.20 which reflected their decision that there should be a reduction in both the basic and compensatory awards of 60% in respect of what is commonly but briefly called "contributory default".

The company appeals against the finding of unfair dismissal and Mr Casey cross-appeals against the 60% reduction in the awards made in his favour.

The Industrial Tribunal gave their decision in the form of making findings of fact which were, although it is not said in terms, clearly unanimous findings. They then set out the majority view which led to the finding of an unfair dismissal and the minority view which of course would have led to the opposite conclusion and then give their unanimous view about the reduction in compensation.

So far as the findings of fact are concerned they are within a fairly short compass in the Industrial Tribunal's report and it may be convenient just to take what they say:

"(i) The applicant [I will call him Mr Casey to avoid confusion between Respondents here and below} Mr Casey was employed by the company as a night shift operator and was so employed operating a vacuum forming machine on the night of 21/22 December, 1989.

(ii) At about 5.30am on 22 December, 1989 Robert Shaw, a Security Officer, employed by a private firm contracted to the company, made a random patrol. On coming through a door into the work area, he saw Mr Casey who jumped back from a drinks vending machine, the door of which was open. Mr Casey explained to Mr Shaw that he was closing the door of the machine and Mr Shaw told him to carry on doing so. Mr Casey did not give any reason at that stage why the door was open.

(iii) Sometime later, Mr Lloyd, the night shift superintendent reported that other vending machines appeared to have been broken into and cash taken from them.

(iv) Later in the morning of 22 December, Mr Casey was summoned back to the factory from his home for an interview with Mr J Jackson, the Personnel Manager. He was interviewed in the presence of Harry Mosses a Union Representative and Maurice Collett. Mr Jackson stated that he had received a report that Mr Casey was seen with his head inside one of the drinks vending machines. Mr Casey said that he had found the machine door open when he had gone to it to obtain a drink. Mr Jackson told the applicant that he had been found in a suspicious circumstance and would be suspended on full pay for up to three days, pending a full investigation. He was told that the three days of suspension would be Tuesday, 2nd January, Wednesday 3rd January and Thursday 4th January, 1990. [I interpose to mention what was common ground namely that the 22 December was the last day of work before the Christmas holiday and that the 2/3/4 January were the next working days after 22 December].

(v) On the 4th January, 1990 a disciplinary hearing took place at which Mr Casey was present together with representatives of the management and the Union. A report was then made to Mr Anthony Brian Palmer, the Technical Director who in accordance with company policy was not present at the disciplinary hearing. Mr Palmer then saw Mr Casey in the presence of the members of the Investigating Committee and told Mr Casey that he was dismissed as from the night of 4th January.

(vi) On the 10th January, 1990 an appeal hearing took place at which Mr Casey was present together with representatives of management and the trade union. Notes of the appeal were provided to the Tribunal. At the conclusion of the appeal, the management reiterated the decision that Mr Casey should be dismissed."

The Industrial Tribunal then recorded certain matters on which they found that there was disagreement between Mr Casey and the company but they do not in terms make any findings with regard to those disagreements in that paragraph.

We then come to the decision of the majority and this is of course the subject matter of the appeal. The Industrial Tribunal said this:

"By a majority the Tribunal considered that there had been procedural unfairness and characterised the actions of the management as a failure properly to investigate as a result of muddle. In particular, the majority of the Tribunal expressed the following reservations:- (a) They were disturbed that Mr Palmer was not involved in the investigating panel, but that the panel constituted on 4 January, investigated and then reported to Mr Palmer who carried out the dismissal. (b) At one stage in evidence, Mr Palmer said "we know that everything has not been done correctly, but he was caught in a machine which had been broken into". The majority members of the Tribunal regarded this as an admission by Mr Palmer that the respondent had not carried out reasonable investigation procedures. (c) The majority of the Tribunal did not accept Mr Shaw's evidence where it differed from that of the applicant, but they preferred the evidence of Mr Casey. The majority members of the Tribunal considered that in places evidence about the applicant's actions had been scanty. (d) The majority members were not satisfied that the panel of 4 January, 1990 carried out its investigation as thoroughly as it might have done. (e) The majority were also concerned that a proper investigation has not taken place as soon as possible, although they appreciated that the company's procedure provided for an investigation within three working days and as a result of the Christmas holidays this had taken place. The majority members were however concerned that because of Christmas holidays the gap between the date of the alleged offence and the date of the actual investigation was considerably longer than would normally be the case."

And that is so far as the appeal is concerned, the whole of the decision.

We have come to the conclusion that this is not a decision which can stand. We say that because of the five particular reservations, as the Industrial Tribunal calls them - but we feel they must really be reasons for the conclusion that they expressed - we find an error of law in two cases and what seems to us to be an error of interpretation of the Notes that the chairman of the Industrial Tribunal took in a third. The last two of the reservations or reasons are not matters which in our view reveal errors of law although certainly in one case they are conclusions which this Tribunal would not itself have reached, but that is not of course a sufficient ground for interfering. On the other hand it does seem to us that there are sufficient grounds for interfering in relation to the first three reasons. I turn to consider them.

First of all it was said that the majority was disturbed at Mr Palmer not being involved in the investigating panel but that Mr Palmer, who carried out the dismissal, was only reported to by the investigating panel. It seems to us that this is a mistaken legal view because it can be ground for criticism in some cases that an investigating officer is the person who dismisses if he is too close to the investigation. This is very seldom the case because it is well established that one cannot expect, particularly of relatively small industrial concerns, the degree of separation of function that one does expect and insist on in anything which is judicial. The processes of dismissing are not a judicial process and it is very far from being the law that association with investigation necessarily precludes a person from being the dismissing officer. But the converse is not true. That is to say there is no requirement of which we are aware, that a dismissing officer must be a member of the investigating panel. The procedure that the company adopted was in evidence and does not contain any such requirement and in our view it simply is not the law that there is a requirement that a dismissing officer should be involved in the investigating panel.

It may be that the Industrial Tribunal was aware that this was not a legal requirement and therefore only said that they were disturbed at this feature, but if and to the extent to which this was a factor, and it must have been a factor because it is one of the particular reservations that the majority expressed, it seems to us to have been an erroneous one.

The second point which seems to us, with respect, to amount to an error of law is the third of the reservations, that lettered (c), in which the Industrial Tribunal majority says:

"the majority of the Tribunal did not accept Mr Shaw's evidence where it differed from that of the applicant, but they preferred the evidence of the applicant."

That, in our view, reveals an error of a very significant and important nature in that it is only explicable on the basis that the Industrial Tribunal was looking at the question whether the accounts that those two gentlemen gave, that is to say Mr Shaw and Mr Casey, of the events of the night of 22 December were accurate and which of the two where they differed, as they did differ, was factually to be preferred. That was the only subject upon which both gave evidence. It is a matter for comment, that in fact the majority of the Tribunal appears not to have practised what it preached because in their unanimous findings of fact which I read earlier, it will be recalled that they said that Mr Casey jumped back from the drinks vending machine when Mr Shaw came through the door into the area where the vending machine was situated. In fact that is the evidence that Mr Shaw gave and not the evidence that Mr Casey gave which was that he stepped back. So to that extent the Industrial Tribunal majority did exactly the opposite of what one would expect if they did really not accept Mr Shaw's evidence where it differed from that of Mr Casey.

However, the much more serious feature is that it seems to us that they were not looking at what they should have been looking at which is whether the company, through its officers right through the period which included the appellate process on 10 January, were acting reasonably in treating the evidence that was before those officers as sufficient to dismiss Mr Casey. That is a wholly different question from the question of whether Mr Shaw or Mr Casey was telling the exact truth and stating it accurately in relation to the events of the 22 December.

What an Industrial Tribunal has to do, is set out in very well known terms in ICELAND FROZEN FOODS LTD v JONES

[1982] IRLR 439

at paragraph 24, on page 442, which is in fact lifted verbatim and put into the headnote in the IRLR report. We do not propose to set it out in full, but it will be recalled that the critical part is the fifth stage:

"the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair."

That sentence, which is an important sentence, in paragraph (c) of the majority's reservations or reasons, indicates to our mind quite clearly that a different point was being looked at.

The reservation or reason which seems to us to involve an inaccurate interpretation of the notes taken of the evidence is the second one, (b), where it is said that the majority regarded what Mr Palmer said in evidence as an admission by him that the respondent had not carried out reasonable investigation procedures, and they quote some but not all, of what the note records Mr Palmer as having said. The notes read as follows. There is a reference to page 15, final paragraph. That is a reference to the final paragraph of the notes that were taken of the Disciplinary Hearing on 4 January 1990 and the note of the Disciplinary Hearing says Mr Palmer said this:

"We know that everything has not been done correctly by the company but he was caught in a machine which had been broken into. He also went back to the same machine again for the second time."

As to that the evidence that the chairman has recorded as having been Mr Palmer's in cross-examination before the Industrial Tribunal was this:

"Everything not done correctly" - the security man should have taken Casey to supervisor immediately he found him so that machine could have been checked. Nothing to do with fact investigation took place 13 days later"

It seems to us that the admission that Mr Palmer made under cross-examination - fairly clearly he was asked "what was not done correctly" - was a limited admission which extended to an acceptance of the fact that not as much investigation as should have been done was in fact carried out by Mr Shaw the security man. That is not anything which is significantly in doubt, or has been in doubt at any material stage because the question is not whether Mr Shaw did everything he should have done on the 22 December, but whether, in the knowledge that Mr Shaw did what he did and did not do what he did not do, the dismissing officers including those who conducted the Disciplinary Hearing and the Appeal, acted reasonably in dismissing Mr Casey which is of course not the same question.

We therefore conclude that it is not an admission by Mr Palmer that

"The Respondent had not carried out reasonable investigation procedures"

in a relevant way, because the relevant reasonable investigation procedures were not by any means limited to what happened on the night of 22 December but included everything that had happened thereafter and in particular included the material before the dismissing officers and the officers who heard the appeal.

Those are the three grounds upon which we find an error of one sort or another. It was drawn to our attention by Mr Gorton who said everything that could be said on behalf of Mr Casey, that these were not necessarily the whole of the reasons that moved the Industrial Tribunal and we are mindful of the fact that it is not right for this Tribunal to assume that anything which is not stated in terms in an Industrial Tribunal's decision is something that they have overlooked. One has to have reasonable regard to the duty of an Industrial Tribunal which is to tell the parties why they have won or lost and they do not have to set out all the reasons that motivated them.

What moves us to allow this appeal is that there are, for the reasons we have sought to give, actual serious and significant errors in the reasons that were given and in that context, although it may well be that those words in particular indicate that there were other motivating reasons which induced the Industrial Tribunal majority to do what it did, nevertheless we have to attach very significant importance to the ones that the majority thought were worth mentioning in terms and on that basis if one finds, as we do, material for finding errors in three out of five, it does seem to us unjustifiable to regard the decision as one that ought to stand.

We say that with no enthusiasm whatever because it is self evident that the delays that have occurred in this case, as sadly in virtually every other case that comes to a full hearing, in this Tribunal are distressing. We are quite unable to accept the submission that was made to us by Mr Morrow that there is only one possible solution to the facts as found, namely that the dismissal was fair; it seems to us that this a case where some tribunals might come to one conclusion, other tribunals might possibly come to another and it is of course notorious that it is not for us to exercise the discretions that Parliament has seen fit to give to Industrial Tribunals.

We see no alternative to remitting this case for reconsideration and it must, we think, be before a differently constituted Tribunal. There is no point in our discussing the interesting and not entirely straight forward question which arose in relation to the contributory fault point and we do not propose to take time up in discussing that because it becomes academic in the circumstances. The appeal will therefore be allowed.