Havill v Noden [1992] UKEAT 536_90_0909

EAT
Havill v Noden
[1992] UKEAT 536_90_0909 · 1992-09-09
MR JUSTICE WOOD (PRESIDENT): By an Originating Application dated the 4th April 1990, Miss L Noden complained to an Industrial Tribunal that she had been unfairly dismissed by her employer a Mrs Havill.Mrs Havill was looking after some three children on her own, but was a working mother, and Miss Noden was the children's Nanny. She had been employed as such by Mrs Havill from the 30th November 1987, she was finally dismissed on the 12th March 1990. The allegation made by Mrs Havill was that Miss Noden had been dishonest in connection with an account that Mrs Havill had with a firm called "Grattan plc".Until the 12th or the 13th February 1990, there had been no problems, and there were no complaints either about Miss Noden's work as a Nanny or about her conduct. In fact although it was not known to Mrs Havill, both Miss Noden and Mrs Havill each had separate accounts with that firm called "Grattan".Some time in November 1989 the Applicant had given an order to Grattan for a camera. On the 12th or 13th February 1990, Mrs Havill received a statement dated the 7th February from Grattan which included an item of white boots - pausing there, there is no evidence of the regularity within which statements are sent out by Grattan - but in any event in that statement of the 7th February Mrs Havill spotted an item which she did not remember, which was white boots; that item in fact, were trainers which she herself had ordered for her children. However, during that conversation Grattan told her about a camera which had been ordered. Mrs Havill was clear that she herself had not ordered a camera and she queried this with Grattan. They quoted an order on her order form. We are not clear entirely whether the camera was on that statement of 7th February, but it should have been if the accounts were accurately maintained because it had been ordered in November.Mrs Havill spoke to her children and they said, that Nanny had a camera in her room in a drawer. Mrs Havill found the camera, and the camera had an order number on it which was Mrs Havill's order number. At the time of this discovery Nanny was not in the house and when she returned Mrs Havill asked her about the matter and Nanny, Miss Noden, said absolutely nothing and would not look at her. From that time Mrs Havill looked for another Nanny for the children and eventually on Sunday 11th March the Applicant was given a weeks notice. That was the position in general terms.The Tribunal found that Miss Noden had told them that she had said nothing because she was too shocked. The allegation made by Miss Havill was clear, she alleged dishonesty and she so stated in her Notice of Appearance to the Originating Application. So that there was no half measures, this was an allegation of dishonesty and it was on that basis that Mrs Havill decided that the Applicant must go.The Tribunal saw and heard the two parties, we have seen the Notes of Evidence, which are admirably full. The Tribunal also adjourned for further enquiries from Grattan and as a result of those enquiries the Tribunal were told that although initially, Grattan had told Mrs Havill that they could not have, or would not have had two accounts at the same address, it is quite apparent that that was so, that the Applicant, Miss Noden, had had her account changed to Mrs Havill's address from as long ago as November 1987 and it also, ultimately, came to light that the mail is prepared, sorted and placed in envelopes by machinery. They could not produce the order form because it had been destroyed.The form in which the Decision of the Tribunal took is just some two pages on liability. It is very succinct but this is an extremely experienced Chairman and we must read the matter as a whole and read it together with the Notes of Evidence and the documentation which was before the Tribunal. The Tribunal refers to Burchell v. British Home Stores [1980] ICR 303 , and then continues thus:
"We have no doubt, in this case, that Mrs Havill honestly believed that Miss Noden had wrongfully used her account."
pausing there, at no time do the Tribunal find that there was dishonesty. They continue:
"were the grounds on which she dismissed Miss Noden reasonable? First, she had checked with Grattan that the camera had been ordered on her form; secondly, her children had told her that the camera was in Miss Noden's room and, indeed was found there. Was there a proper investigation? We think that the investigation was flawed because we think that Mrs Havill should have pursued the matter on 13 February though Miss Noden said nothing. During the ensuing few weeks she could have asked further questions of Miss Noden."
It seems to us if one is looking at that broadly that there are two criticisms, one not pursuing the matter on the 13th February, and secondly, not pursuing the matter with Miss Noden during the ensuing weeks. It is also quite apparent from the evidence that the matter was not pursued by Mrs Havill, even with Grattan. There was that aspect of this case which is not specifically mentioned in the reasoning, but which was before the Tribunal.Mr Gorton, for the Appellant, makes a number of submissions. He submits that the Tribunal erred in law in the approach which it took on lack of investigation because, the evidence was so clear that really no further investigation was needed and that it was putting an unreasonable burden upon the individual, who was a mother on her own with three children, to expect her to have made further investigations. He points out that the camera was ordered in November, on a form which was the employer's form, it was accepted by Miss Noden, it was in her room, and that when approached after finding out about it, from making enquiry about the white boots, there was no reply. He relied, amongst other Authorities, on a particular case of Harris v. Courage (Eastern) Limited [1982] ICR 530, in which case a brewery had been suspicious about his employees, had dismissed them because they were satisfied that the offences had been committed; there was no explanation at the time of investigation, no explanation at a trial subsequently and they were acquitted. It was held, nevertheless, that the employers were entitled to consider that there had been no explanation offered at the time of the investigation and that was part of their consideration of the evidence which was before them in their decision to dismiss. This may be a case where the employee should be warned, and told, that really there is evidence that requires an explanation and that if they do not make explanation that decision could be against them. However, every case must depend upon its own facts and the question here is, was the view taken by this Tribunal, one which upon the facts found and the evidence before them, it could properly take? To quote from Mr

Justice Slynn as he then was in the decision of the Appeal Tribunal in the Harris case, p.533 at C:

"`The decision as whether what happened was reasonable or not is essentially one for them. The majority do not find it possible to say that the industrial tribunal had misdirected themselves in any way in law or that they have reached a decision which no reasonable tribunal could have reached.'"
The Tribunal, in this present case, saw and heard the witnesses, they considered the matter, they in fact ensured that further investigations took place and at the end there are some remarkable facets which have come to light as a result of the further investigations which were not made; one could comment that for some two years, two accounts had been operated from the same address without any problems. One could comment that statements, probably are sent out monthly, and that it is remarkable that the camera was not on the February statement, if it was, why didn't Mrs Havill notice it? The fact that the camera had the same number on, and was in Miss Noden's room, is not indicative, in some peoples minds, of a fraudulent attempt to obtain a camera without paying for it. It was not concealed in any way, the children were very well aware of it. All those sort of factors were matters which the Industrial Tribunal were clearly entitled to look at and to take into account.As to a misdirection in law, it seems to us that they referred themselves to Burchell , they are well aware of the principles involved, and that this was a matter which was essentially one for the Tribunal.We are unable to find here an error in law in the Decision. Before just formally dismissing it, it is right to mention that the Respondent did not appear before us. Miss Noden wrote that she could not take time off from her present employment and it was perhaps for that reason that in this judgment we have rather pointedly put some of the matters, which might have been argued on the other side, had Miss Noden appeared before us.For the reasons which we have given, therefore, this appeal must be dismissed.