SGB Plc v Fletcher [1992] UKEAT 642_90_1412

EAT
SGB Plc v Fletcher
[1992] UKEAT 642_90_1412 · 1992-12-14

JUDGE J HICKS QC:

This is an appeal by the employers, SGB plc, against the Decision of an Industrial Tribunal promulgated on 2 November 1990, after a hearing on 12 July and 24 and 25 September 1990, finding that the Applicant, Mr S Fletcher, had been unfairly dismissed.The facts as set out in paragraphs 1, 2 and 3 of the Tribunal's Reasons are:
"1 Mr Fletcher worked for the Respondents for just over ten years, driving an articulated vehicle from their Sydenham depot. The Sydenham depot was one of four depots the Respondents had in London from which they supplied scaffolding to builders, delivering it to building sites. The metal tubing and the boards used to make up the scaffolding are painted in a distinctive colour to mark them, and the paint contains an ingredient that can be identified on analysis. On 28 February 1990 an articulated vehicle ......."
At this point the Reasons use the words "belonging to the Respondents" but I omit those because whether this vehicle could be found as a fact to be one that belonged to the Respondents was one of the material matters in dispute.
"....... was seen unloading equipment at a site which had no connection with the Company or its customers, namely, outside the Stonehouse Hall Hotel. The vehicle was seen Mr Bohane, the Contracts Manager of the Sydenham depot, who was forced by traffic conditions to stop his car behind the articulated vehicle for a time. As Mr Bohane drove past the vehicle, he saw the driver about to re-enter the cab, but could not identify him and did not take the number of the vehicle. ........
2 Mr Bohane claims to have seen the Respondents' logo on the side of the vehicle as he passed, and said that it was yellow with a mechanical grab on the rear. All the Respondents' vehicles at their depot at Sydenham, save one, had been repainted from yellow to grey and the only remaining yellow vehicle was always driven by Mr Fletcher. That vehicle had a mechanical grab at the rear. The driver seen by Mr Bohane was wearing a yellow waterproof as it was raining at the time.3 Enquiries were set in hand through a Security Officer of the Respondents, and the Police were informed. On 7 March the Police arrested two men, who were not SGB employees, on a charge of being in possession of the Respondents' contract material, and on the same morning the Respondents' Security Officer received from the Police 19 scaffolding boards and 4 x 21 ft tubes, with 3 fittings, all of which belonged to the Respondents."There is no finding as to where they were recovered from. Subsequently Mr Fletcher was arrested by the Police and charged with the theft of the Respondents' equipment. The Reasons go on to describe the investigations made by the Respondents, and a meeting was held by them at which they discussed the question of the inspection and examination of the tachograph record. Mr Armstrong, who subsequently conducted the disciplinary hearing, looked at the tachograph itself and drew his conclusions as to its implications, in particular that the vehicle, after going to the building site to which it had been sent, travelled for some 10-15 minutes before stopping for a short period and then driving off. It is also, though not included in the narrative at that stage, implicit in paragraph 8 of the Tribunal's Reasons that the employers in dealing with this matter down to and including the disciplinary hearings also had regard to Mr Fletcher's daily record sheet.On the basis of that information the employers held a disciplinary interview on 12 March, twelve days after the events in question, chaired by Mr Armstrong. Paragraph 5 of the Tribunal's Reasons in dealing with that hearing say:
"5 ...... Mr Armstrong explained [to Mr Fletcher] that the Company's vehicle had been seen in a place where they would not have expected to see it, bearing in mind the time and distance, and that he believed, unless some explanation could be given, that Mr Fletcher had driven the vehicle there. Mr Armstrong also stated that someone, who was not an employee of the Respondents, had been seen unloading the Company's materials form the back of that vehicle, and that Mr Fletcher had to offer some explanation as to how the vehicle was there. Mr Fletcher offered no explanation but simply said that he was not there. Mr Armstrong, as he told us, unable to understand how the vehicle could have gone to the site without Mr Fletcher, formed the view that Mr Fletcher was not telling the truth and decided to dismiss him."
Mr Westerman [Mr Fletcher's full-time trade union official and representative for the purpose of disciplinary hearings] propounded no explanation of the matter, but stressed Mr Fletcher's length of service, the fact that there had been no previous disciplinary offence, and pleaded for leniency."There was an appeal. Paragraph 6 of the Reasons gives an account of the appeal hearing:
"which took place on the 16th March 1990 before the Respondents' Contract Director, Mr Morley. Mr Armstrong was present at that appeal and took a note in manuscript which was produced in evidence together with a typewritten copy."
I interpolate that that was the only record produced of any of these hearings; there was no record of the original disciplinary hearing and no record of the appeal hearing made by Mr Morley, who was conducting it, only that by Mr Armstrong who was attending it having heard the original disciplinary interview.
"The principal matter raised on Mr Fletcher's behalf at that meeting appeared to be the question of differences of opinion which Mr Fletcher had had with the Respondents' Battersea depot, and the drivers there. Mr Bohane's brother was the Depot Manager at Battersea, and the suggestion or implication was that Mr Bohane had deliberately and falsely reported what he had seen as a reprisal for Mr Fletcher's difference of opinion with his brother, Philip Bohane. Mr Westerman did most of the talking at the appeal hearing, at the end of which Mr Morley decided that the disciplinary decision should be upheld and the appeal dismissed."
On the basis of that history the Tribunal reached a decision by a majority, the two lay members being in favour of finding that there was unfair dismissal and the legal Chairman being of the opposite view. The reasons for the conclusions of the majority are in paragraph 8:
"On that evidence, the conclusion of the two lay members of the Tribunal is that the Respondents did not undertake sufficient initial investigation regarding the whereabouts of the vehicle driven by Mr Fletcher, and did not put the information which they had, or at least the essentials of that information, to Mr Fletcher and, moreover, after Mr Fletcher's denial at the disciplinary hearing, they did not, as they ought to have done, undertake sufficient or any further investigation before forming their belief in his guilt. To particularise, it appeared from the evidence that Mr Bohane did not positively identify an SGB logo on the side of the articulated vehicle, although subsequently he contended in evidence that he did; that the trailer the articulated vehicle was pulling (as opposed to the vehicle itself) was painted grey and not yellow; . . ."
(I interpolate that the Tribunal had before it a note taken by Mr Bohane at the time in which he recorded that trailer as being yellow.)
". . . and that the tachograph record was capable of differing interpretations. At no time was Mr Fletcher or his representative offered the opportunity of seeing the daily record sheet of journeys which Mr Fletcher had completed for his employers in respect of the day in question, the tachograph record card, or, in respect of the appeal, the notes of that appeal taken by Mr Armstrong in manuscript, all of which might have assisted Mr Fletcher in rebutting the evidence presented against him. The lay members consider that all those steps should have been taken by the Respondents before Mr Armstrong, at the disciplinary hearing, formed his belief in Mr Fletcher's misconduct (save for the production of Mr Armstrong's notes of the appeal hearing) and that if the conclusion reached by Mr Morley at the appeal hearing is to be a reasonable one, they should certainly all have taken place before he formed that belief and upheld the decision to dismiss. Accordingly, the lay members are convinced that in this case the dismissal of Mr Fletcher was unfair for the purposes of section 57(3) of the Employment Protection (Consolidation) Act 1978."
The lay Members, as appears from paragraph 11 of the Reasons, also concluded:
"that Mr Fletcher contributed to his dismissal by his conduct, including his refusal to explain what had happened during his disciplinary interview, and that it would be just and equitable in the circumstances that his compensation should be reduced by 50%."
The Chairman, as I said, dissented and gave his reasons in paragraph 10, which I do not think I need read.The Notice of Appeal raises two grounds of appeal, the first of which is what is commonly called the ground of perversity, that is to say whether:
"a reasonable tribunal could have found that the Appellant did not undertake sufficient investigation before forming their belief in the Respondent's guilt,"
There is a second ground of appeal which was not pursued before us. There had been no direction for the Chairman's Notes of Evidence to be produced and we have not those Notes of Evidence before us, although the Appellants put in, as a supplementary bundle, documents which were before the Industrial Tribunal.Mr Supperstone, for the Appellants, without formally abandoning the ground of perversity, argued the appeal substantially on the basis of misdirection, and at the end of his reply he applied for leave to amend the Notice of Appeal by adding that as a ground of appeal by way of amendment to the Notice of Appeal in the following terms:that the Industrial Tribunal erred in law in relation to the applicability of the third limb of the Burchell test, in particular in relation to the nature and extent of the investigation that an employer needs to undertake before dismissing an employee for misconduct. The error was1.Failure to take into account Mr Fletcher's total absence of explanation and2.Reliance on the fact that Mr Fletcher was not afforded the opportunity of seeing the daily record sheet or the tachograph when in essence the facts behind that documentation had been put to him.As to the original ground of perversity Mr Aldridge cited to us the case of Piggott Brothers & Co Ltd v. Jackson and Others [1992] ICR 85. The relevant part of the headnote to that case reads:
" Held, (1) allowing the appeal, [and it was an appeal to the Court of Appeal from the Employment Appeal Tribunal which had held that the Industrial Tribunal's decision was perverse] that in the context of employment law perversity fell to be determined by reference to whether the decision under appeal was a permissible option, having regard to whether findings of fact were unsupported by any evidence or there had been a clear self-misdirection in law; that, since the issue before the tribunal concerned the reasonableness of the parties' conduct, the appeal tribunal could not have held the decision perverse without recourse to the full notes of evidence; that in the absence of such notes and since the court was satisfied that there were no grounds for concluding that the decision was perverse, the order of the appeal tribunal would be set aside."
In other words, the decision of the Industrial Tribunal was restored and Mr Aldridge draws attention, in particular, to the decision of the Court of Appeal that where, as there and here, the issue before the Industrial Tribunal concerned the reasonableness of the parties' conduct, the Appeal Tribunal cannot hold the Industrial Tribunal's decision perverse without recourse to the full Notes of Evidence. Only the headnote was cited to us by Mr Supperstone does not dispute that it is a fair summary of the parts of the judgments of the members of the Court of Appeal that deal with that point, and he accepts that he is therefore in difficulty in advancing the appeal on the grounds of perversity.We find ourselves quite unable, in the absence of the Notes of Evidence, to conclude the decision of the Industrial Tribunal was perverse, in the sense alleged in the grounds of appeal. There is no application to adjourn this appeal so that those Notes can be obtained and the appeal on that ground therefore fails.We are left with the two questions whether to allow the amendments sought by Mr Supperstone and, if so, whether to allow this appeal on that ground. Mr Aldridge objects to the amendment on the ground of lateness and Mr Supperstone concedes that if the amendment were allowed he could not resist an application for an adjournment so that the Respondent to this appeal could have a reasonable time to consider that aspect. Logically the application to amend falls to be considered first, but since that application and any question of adjournment become academic if we would reject the substantive appeal, as amended, without needing to hear Mr Aldridge further, and since that is the conclusion we have reached, we proceed directly to our reasons for that conclusion.As to the first alleged error, the failure to take into account Mr Fletcher's total absence of explanation to the disciplinary interview, we consider that that is answered by paragraph 5 of the Tribunal's Reasons, in which that matter is expressly mentioned, and by paragraph 11, in which the majority explicitly have regard to that fact as one of their grounds, indeed the only one mentioned, for reducing the amount of the compensation. In our view the majority of the Industrial Tribunal clearly did have that consideration firmly in mind.As to the second ground, the reliance by the majority of the Tribunal on the fact that Mr Fletcher was not afforded an opportunity of seeing the daily record sheet and the tachograph, what the Appellant, in our understanding, has to show is that this was an irrelevant fact which the Tribunal should not have taken into consideration. In our view it was plainly relevant. If the real complaint is not that it was irrelevant but that the majority of the Industrial Tribunal gave too much weight to it then that is not a misdirection or other error of law; what weight to give to relevant facts is a matter for the Industrial Tribunal, not for the Employment Appeal Tribunal. That suffices to dismiss the appeal.There was a further matter canvassed to some extent in argument, largely on our own instigation, but not included even in the proposed amendment to the Notice of Appeal. That is whether the majority of the Industrial Tribunal misdirected itself by asking itself the wrong question as to the employers' investigation. It might, we thought, be arguable that the Tribunal in such phrases from paragraph 8 of their Reasons, which I have already read substantially in full, as:
"the Respondents did not undertake sufficient initial investigation . . . did not put the information which they had, . . to Mr Fletcher . . . after the disciplinary hearing did not, . . . undertake sufficient or any further investigation"
and then after dealing with various steps:
"all those steps should have been taken . . . at the disciplinary hearing . . . they should certainly all have taken place before the appeal hearing"
- it might be argued that such phrases show that the Industrial Tribunal was putting itself in the shoes of the employers instead of asking whether the employers' procedure in those respects was within the band of reasonable courses which might have been adopted by reasonable employers. We were reminded of Section 57(3) of the Employment Protection (Consolidation) Act 1978 and referred to the cases of British Home Stores Ltd v. Burchell [1980] ICR 303 , Weddel (W.) & Co Ltd v. Tepper [1980] ICR 286, Fuller v. LLoyds Bank plc [1991] IRLR 336 and Inner London Education Authority v. Gravett [1988] IRLR 497, all of which might have some bearing on this point. But since it was, in the event, not within either the Notice of Appeal or the proposed amendment our answer to it is not part of our decision or of our formal reasons.However, we are of the view that it would have failed for the following reasons, which in the circumstances I put very briefly. First the Industrial Tribunal plainly had in mind that the ultimate test, of which statements in the reported cases are only illustrations, is that set out in Section 57(3) of the Employment Protection (Consolidation) Act 1978, to which they expressly refer in the final summary of their conclusions. Secondly, the language used by an Industrial Tribunal is not to be gone through with a fine tooth comb and, indeed, the phrases used in this case by the Industrial Tribunal are very similar to the expression in Piggott's case cited and approved by the Court of Appeal as a correct way of putting the question. We refer in particular to the sentence:
"Hence the Chairman finds that a reasonable employer, in this line of business, would have considered misconduct to be, at the very least, within his band of reasonable conclusions, and dismissal to be within his band of reasonable responses to what had occurred"
That was unexceptionable, and we find it impossible to suppose that in a case where the Industrial Tribunal was divided in its view of the outcome of the application to them, with the two lay members being of one view and the chairman of another, the three members of the Tribunal would not have had extended discussions during which the chairman, who records himself as having directed himself in those terms, would not have equally reminded his colleagues of the test to be applied, and we conclude that the proper inference is that the majority did apply that test.In the event, however, as I have already indicated, we dismiss the appeal because the ground of perversity set out in the Notice of Appeal is not, and cannot be, made out in the absence of the Notes of Evidence, and the proposed ground of appeal put forward by the amendment is one which cannot succeed, whether or not we allow the application for amendment.In the circumstances, unless Mr Supperstone wishes to pursue the application to amend with a view to the matter going further, we do not think we need to rule upon it.

[After further argument]

Mr Aldridge applies for the costs of this appeal. I have already recited the facts in dealing with the substance of the appeal and I need not repeat them. The basis of the application, in substance, it seems to us, is in the terms of Rule 27 of the Employment Appeal Tribunal Rules there was unreasonable conduct by the Appellants in the conduct of the proceedings in failing to have regard to the effect of the decision in Piggott's case, the proper course once that case had been reported being either to abandon the appeal or to seek leave to amend and/or, in any event, if the appeal was to proceed to apply for the Chairman's Notes of Evidence. It is not, as we understand it, really disputed by Mr Supperstone that that would have been the reasonable course and we find that there was unreasonable conduct in the conduct of the appeal in that respect. The parties really agree that in those circumstances all we can do in terms of the appropriate amount of costs to order is to look at the matter with a broad brush, because it is plain that some costs had already been incurred before Piggott was reported and that other costs would probably have been incurred in any event. What were wasted were the costs of preparing for the appeal on a basis which, in the event, was no longer pursued and could not have been pursued. We respond to that invitation to look at the matter broadly and have concluded that the right order to make is that the Appellant should pay two-thirds of the Respondents' costs.