Music Hire Group Ltd v Bathgate & Anor [1992] UKEAT 558_90_2210

EAT
Music Hire Group Ltd v Bathgate & Anor
[1992] UKEAT 558_90_2210 · 1992-10-22

JUDGE J HULL QC:

This is the unanimous Judgment of this Tribunal on the appeal by Music Hire Group Ltd against the majority decision of the Industrial Tribunal sitting at Leeds on Wednesday 12 September 1990. The two applicants, who were longstanding employees of Music Hire, complained that they had been unfairly dismissed. The decision of the Industrial Tribunal is given admirably clearly, particularly having regard to the fact that there was dissent between the various members of the Tribunal.On the day in question, Saturday 10 February 1990, the applicants, Mr Bathgate and Mr Turner, were at work as bench engineers: they had been in a warehouse and they had been in and out of a workshop trying to get warm, as it was very cold in the warehouse. At 11.15 a.m. there was an incident when another employee saw Mr Bathgate pick up his coat and they both went out of a back entrance. The gentleman who saw them seems to have jumped to the conclusion that they were leaving work.It was not taken up immediately, as it might have been; it was mentioned to the supervisor, Mr Smith, on the next Monday. Mr Smith saw the men: he found discrepancies between their stories and a disciplinary interview was arranged before Mr Smith and Mr Rutter, the General Manager. Again, there were discrepancies between their stories and, indeed, there was a suggestion that one was changing his story. They said that they had been seen, at the time when it was alleged that they had left work improperly, by other named employees, because they were still present in the workshop. The persons who were named were interviewed and apparently they said that they had no recollection of it.This was a serious matter. It was an allegation of dishonesty against these two men justifying their dismissal, notwithstanding that they were longstanding employees, in that at a time when they were supposed to be at work and claiming pay for being at work they had just gone off dishonestly and were claiming that they were still present. That was how it was treated by the employer hence the investigations.Mr Rutter took the decision to dismiss. He came to the conclusion that their evidence was not to be believed and he was satisfied that they had, in fact, left the premises and that they were not, therefore, telling the truth. They were claiming time on their time sheets, he said, for which they had not worked. It was gross misconduct and warranted dismissal and he carried it out. They did appeal to Mr Beaton, the personnel manager, but he dismissed the appeal and so they complained to the Industrial Tribunal.Before the Tribunal evidence was called and the Tribunal found themselves in dissent. The two Industrial Members of the Tribunal took the view:
"5. ......... that the investigation was insufficient because Mr Rutter himself did not interview the witnesses. They take the view that there was insufficient evidence, that there was no positive proof that the applicants did leave work before 2 pm. There is suspicion they say but no proof positive. They are also critical of the role that Mr Beaton saw as his role. They take the view that he also should have in fact re-investigated and interviewed the witnesses. On that basis they say that the respondent has failed to fulfil the test in British Home Stores v Burchell and that the dismissals were unfair."
Pausing there, we have been told again today about that very well known and important case. If the employer is dismissing for dishonesty, or indeed for any other serious matter, first of all he must genuinely believe in it himself otherwise he is not acting in good faith: he does not have to be satisfied as a jury would in a criminal case but he must be satisfied in his mind, in a reasonable way, that the offence has been committed. Secondly, that conclusion must be reached on reasonable grounds and after taking reasonable procedural steps.Those are the requirements but if those requirements are fulfilled then it is not for any other Tribunal, whether it is an Industrial Tribunal or this Appeal Tribunal, to substitute its judgment for that of the management. It is not the task of the Industrial Tribunal to retry the facts and reach a conclusion that the employer was wrong in reaching a certain decision; but it is the task of the Industrial Tribunal to say whether, amongst other things, the employer acted fairly and reasonably in reaching his decision to dismiss. That involves looking at the procedures followed and it is a question of fact for the Industrial Tribunal. Of course, if the Industrial Tribunal goes wrong in law then we will review the Industrial Tribunal's decision.Leaving, for a moment, the decision of the majority:
"6. The chairman takes the completely contrary view. His view is that there was a full investigation, that all the appropriate witnesses were interviewed, that where at disciplinary interviews the applicants mentioned new names of people who were likely to know that those people were interviewed. The chairman does not criticise Mr Rutter for not seeing the witnesses himself or for delegating the search for evidence and then accepting that evidence through Mr Smith. He bears in mind strongly that the tribunal should not step into the shoes of management and decide what it would do in the circumstances. He takes the view that the respondent is entitled to interpret the evidence in the light of the knowledge of its own premises and if it is satisfied that the applicants could have been seen, or at least heard, if they had been on the premises and that they were not seen and heard then that is a decision that the employers are entitled to make. They are entitled to take into account the statements made and the conflict in those statements by the applicants. The chairman further takes the view that having seen both the applicants and heard them give evidence, which he finds still conflicting and inconclusive and lacking in credibility, the respondent was entitled to take the view that it did. Furthermore, the chairman bears in mind that the required burden of proof which the employer has to apply is not that applied in the criminal courts of proof beyond the reasonable doubt but that in the civil courts of proof on a balance of probabilities. Bearing all those matters in mind the chairman is firmly of the conclusion that the test in British Home Stores v Burchell has been satisfied ......"
It seems to us that most of the propositions advanced by the learned Chairman are beyond criticism as general propositions. It was the duty of the Industrial Tribunal to consider the satisfactory nature, or otherwise, of the enquiry which the employer carried out and say whether it was a fair and reasonable enquiry. It appears to us that what the majority were saying is this: on the facts of this case, where there was no direct positive proof and bearing in mind that these were longstanding employees and all the circumstances of the case, the person who took the responsibility for dismissal, in this case Mr Rutter, should have seen the witnesses himself. It was part of the employers' duty to decide who was lying and to ask himself the sort of questions which a jury or magistrate has to consider. For example: If both of these men have altered their story or if there are discrepancies in those stories, is that a matter which shows that they are not telling the truth, or simply that they may be mistaken, or is it really a matter of no relevance at all? What do we think of the witnesses who say they never saw these men? Do we say to ourselves "they may not remember seeing them it is now several days later"? If the witnesses are quite sure about it, is there an innocent explanation for this or are we are driven to the conclusion that these men are lying? Those are the sort of questions which anybody investigating this would, in the circumstances, have to ask himself.In those circumstances, it is our unanimous view that the majority of the Tribunal, the two Industrial Members, were entitled to form the view which they did; namely, that in the circumstances of this case the officer who was to take the responsibility for dismissing the men should himself have seen the witnesses and not delegated that task to Mr Smith or anybody else, because it was a serious case in which the question arose of what credit was to be given to each of the witnesses. It was a serious charge. Mr Rutter should have asked himself those questions, as a matter of commonsense not law, and therefore, as a finding of fact in the circumstances of this case, this enquiry was flawed.The Industrial Members were entitled, in our view, to say that - that being the position - the officer who heard the appeal, the personnel manager Mr Beaton, should have heard the witnesses. Criticism is made of the Members because they referred to the evidence and said that it was insufficient and there was no positive proof &c. We do not read that as saying that the Members were putting themselves in the position of the employer in trying to make up their own minds about the evidence: they were simply making the obvious comment that would be made by anybody looking at the facts in this case, that there being no proof positive, and since everything depended on credit and the local knowledge of the various witnesses and the manager himself, the manager should have seen those witnesses and asked them the questions which only he could ask that would satisfy him about the truth of the matter. He not having done that, then Mr Beaton should have done.The Chairman found the evidence of the employees conflicting and inconclusive and lacking in credibility; but we would say, all the more reason, if that was the position, why the majority was right and the learned Chairman, with great respect to him, was wrong. These are matters which should not be assessed by the Tribunal but which had to be assessed by the employer. Therefore, the situation that arises is this, that on a question which was purely one of fact for the Tribunal; whether the enquiry was reasonable and fair in all the circumstances- the learned Chairman was outvoted by his two lay members as they were fully entitled to do.It was not a matter of law at all and we do not think that any matter of law arises here. Mr West, who put his case with great thoroughness told us that this was the Tribunal putting a duty on the employer and cutting down the very wide band within which the employer is free to work. We do not interpret it in that way at all. Of course it is for the employer to say how he is to go to work in considering a dismissal. If we had thought that this Tribunal was saying that a manager must invariably interview all the witnesses before reaching a decision to dismiss that would be an intolerable proposition which would only have to be looked at to be seen to be absurd.It is also pointed out by Mr West that neither of these men at any stage of this enquiry suggested that the manager himself should have seen all the witnesses. There are several answers to that: it is for the employer to establish a fair enquiry and not for the employees to tell the employer how to do his job in that regard. Secondly, the men are in a subordinate position and thirdly, they might not know or have been told exactly what enquiries Mr Rutter had carried out. We do not think that the mere omission of the employees to behave as a barrister might on such an occasion and point out defects in procedure is to be taken against them in any way.Whatever one says about that it boils down to this: the failure of the employees, if such it was, to point out a defect in what was being done, is a matter of fact to be put in the scales by the Industrial Tribunal. It appears to us that that is exactly what the Tribunal did and that there is no error of law to be found in their reasoning or in the conclusions of the majority. In those circumstances, and since we can find no point of law here, the appeal must be dismissed. That is the Judgment of us all.