Katigbak v Exchange International [1993] UKEAT 403_91_2904

EAT
Katigbak v Exchange International
[1993] UKEAT 403_91_2904 · 1993-04-29
MR JUSTICE WOOD (PRESIDENT): By an Originating Application which was dated 11th January 1991 Miss Katigbak alleged that she had been unfairly dismissed by her employers Exchange International. That was the trading name of a company called Lenlyn (UK) Limited. The allegation was that she had been unfairly dismissed because it had been alleged, and she suggested it was untrue and unfairly alleged, that she had failed in her duties as a Cashier at one of their cash dispensing positions, in that she had failed to record and to give a receipt in connection with a change from Sterling into Lira.The Company operates some 20 exchange bureaux in London and a further 20 abroad. They employ a staff of about 100. The Applicant had been in their employ, as a Cashier, from March 1985 until 10th December 1990 when she was dismissed.In her written contract of employment there was a clause which read, and it is quoted by the Industrial Tribunal:
"I can be sacked instantly and also arrested by the police if I do not record any transactions or carry out any fraudulent transactions."
She had, apparently, worked satisfactorily for the Respondents. As is clearly recognised this is an employment which requires a high degree of honesty. It is a function which is closely monitored - there are in fact videos in the shops - but it seems to us looking at the evidence that those videos are for the purpose of recording those who visit the shops, in case, for instance, there is an armed hold-up. The evidence was that the staff themselves control the videos and change them over even during the course of a day, so that they do not represent a record of what is happening in front of a cashier, nor the activities of the cashier, for more than a few hours. It seems to us that if the purpose of this is to keep an overall record in these matters, it is not very effective but there were videos. However, far more importantly from the point of view of controlling cashiers, there were computerised tills recording every transaction; providing a receipt; calculating the exchange rates and generally keeping a mechanical and automatic check on all the transactions. In addition to those steps the Company employ an independent security firm who carry out test purchases. All those test purchases are, again, recorded by the members of the security firm on a form, which we have seen. Those security employees, from the firm, work in pairs, as I think is usual. They check their procedure and the form allows them to make comment, not just on the procedure, but on the cleanliness and the look of the whole bureau.On the 12th November 1990 a Mrs Lindsay, and the member of the staff who was with her, a Mr Stimpson, visited the bureau in Oxford Street where the Applicant was the Cashier. Mrs Lindsay handed in some Sterling, £34.75, and she was given Lira in exchange at an appropriate rate. She was not given, or offered a receipt. She went outside, met her fellow investigator and wrote up her report. She stated to Mr Stimpson that she had not received a receipt, and indeed, there was a further test transaction at a later stage. On the report form the Applicant was described and the description written down is substantially that of the Applicant.That being the 12th November 1990, the report did not reach the Company until the last week in November. It was quite clear that there was no other person involved in the shop at the relevant time and on the relevant date. The computer print-out was obtained and it recorded other transactions, namely, the test purchase of the other investigating officer but not that of Mrs Lindsay.The Applicant was asked to call at Head Office on the 4th December and there she met a Mr Sweetland, who was a Director, and Mrs Lindsay, who had made the test exchange. The purpose of that interview is important to establish. In the Notice of Appearance it is clear that the Respondents, the Company, are setting out the various steps which it took. In the second paragraph, they are not numbered, they describe this meeting on the 4th December as its purpose "to investigate this incident". So this was a meeting to investigate and to look into the whole matter. They distinguish it from a later meeting, on the 10th December to which we will come, to which they refer in the Notice of Appearance as the disciplinary interview. It is also quite apparent from the report of Mrs Lindsay of what occurred on the 4th December that there was to be a re-interview at a later stage. It is also apparent that the Applicant was not very complimentary about Mrs Lindsay and was clearly taking a fairly belligerent attitude.There is one other document which was in the bundle and which indicates the view being taken by the Company because, as a result of this whole incident, a circular was sent to, presumably all members of the staff, but "TO WHOM IT MAY CONCERN", in which the episode was referred to and it was therein again made clear (A32 & A33) that there was the investigating meeting of the 4th December 1990 and the disciplinary hearing on Monday, 10th December 1990.On Monday 10th the Applicant was asked to attend again; on this occasion she was offered to be accompanied by a friend but she declined that. Apparently a different security officer approached her on this occasion and questioned her. She was subsequently seen by the Personnel Manager and dismissed. It is not clear from the finding of the Tribunal whether the Personnel Manager was present throughout or not, however, she was eventually sent a letter of dismissal and the reason given was as follows:
"The reason for your dismissal is not issuing a receipt to a customer (who is in fact a security officer employed by the Company) and failure to record the transaction in the daily transaction chart."
Those really being the facts. The issues which the Tribunal had to decide were, first of all what was the reason for the dismissal, and there was no issue about that, but then it had to look at the procedural aspects and applying the Burchell test it looked to see whether there was sufficient evidence, after sufficient investigation and without any obvious necessity to investigate further, upon which the decision could be made or the conclusion reached by the employers that the reason given had in fact taken place. There is no challenge about that, indeed there could not be, as Mr Allen frankly conceded, this was, if proved, a dishonest matter, gross misconduct and would merit dismissal without notice. That is not the point in this case. Nor is it the point, following from that concession, that this reason merited dismissal. The issue is the procedure prior to the decision to dismiss and involved in the decision to dismiss.The Tribunal deal with the matter really quite shortly in paragraph 12 and 13 of the decision to which we turn. Paragraph 12 reads:
"The Tribunal were not happy about the way the respondents dealt with this case from the point of view of the requirements of the Code of Practice and the industrial legislation. The interviewing of the applicant on 4 December was tardy in view of the fact that these events had taken place on 12 November. However on the facts of this case the delay had not adversely affected the applicant because the documentation speaks for itself in the absence of any suggestion that Mrs Lindsay was perjuring herself or had any motives to tell lies. There has been no suggestion that Mrs Lindsay had done such a thing and the transaction of her fellow test purchaser was recorded on the chart.
The next matter the Tribunal were not happy about was the way in which the interview of 10 December took place. It looked very as though by the time there was an interview such as it was on 10 December the decision had already been taken to dismiss the applicant. The temptation arose to decide that the dismissal had been unfair. But it seemed to the Tribunal that reality should prevail. When one heard all the evidence it was overwhelmingly probable that the respondents had acted only after full investigation and upon reasonable grounds they believed that the applicant had not recorded this transaction in the circumstances of the position of trust held by the applicant the respondents acted reasonably and the application is dismissed."The first point we must look at, although it was not the first point taken by Mr Robin Allen in his submissions, is to look at the principles in the case of Meek v. City of Birmingham District Council [1987] IRLR 250 . The facts of that case are not material but the principle of the approach of this Tribunal, indeed the Court of Appeal, when looking at Full Reasons given by industrial tribunals, is that they need not be like a judgment of a High Court judge nor need they be looked at in the same way, or analysed perhaps with quite the same approach. But there are certain things which are required of a decision. At paragraph 8, Lord Justice Bingham as he then was, who gave the leading judgment in the Court of Appeal, has this to say:
"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic produce of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted."
Mr Allen criticises both paragraph 12 and paragraph 13 of the decision and submits that it is not really clear what the reasoning of the Tribunal is in either of those paragraphs.As to paragraph 12 he submits that the Tribunal say that the interviewing was tardy but the do not say whether or not that amounts to an unfairness and that one cannot really understand that paragraph properly. On this point we do not agree with him because if one reads paragraph 12 the question of the tardy interviewing is linked with the latter part of the paragraph whereby the Tribunal indicate that the delay did not adversely affect the Applicant because this was a case which largely depended upon documentation and there was no real issue on identification, so that in fact although there was that gap, the gap here was not such as to amount to unfairness on the particular circumstances of this case. That seems to us to be true and was the submission made by Mr Haycroft.However, paragraph 13 is more difficult, it seems to us to fall basically into two parts. First it looks at the interview of the 10th December and then it turns, in the second part, to the reason for the dismissal and whether it was well founded, and to the decision to dismiss and whether it fell within the band of reasonable response.So that the latter half of paragraph 12 deals with those two issues, to which we have already referred, but not to the procedure and it is to the procedure that our attention has been drawn.The first part, which is criticised, we look at again. The first point taken is that the second sentence seems to be in conflict with a finding of fact which had taken place earlier. In paragraph 8 the Tribunal had found, as indeed was the clear evidence, that the Board of Directors, prior to the 10th December but after 4th December, had reached a conclusion and decided that the Applicant was to be dismissed. Yet in paragraph 13 the Reasons say:
"It looked very much as though by the time there was an interview such as it was on 10 December the decision had already been taken to dismiss the applicant."
We agree with that criticism. This was a fact. It can not be brushed aside, it was a fact that there had been a decision to dismiss before the disciplinary hearing, and the comment that the temptation arose to decide that the dismissal had been unfair is an indication that the Tribunal thought that perhaps that was unfair. In any event, on the basis of Meek , it is difficult for us to understand, first of all, what the finding of fact actually was, was there a decision or wasn't there to dismiss? Secondly, that it has not been decided whether or not it was considered unfair. Thirdly, it has not been considered on the Polkey test of looking to see whether despite being open to criticism, it in fact, amounted to an unfairness in procedure. We remind ourselves that Polkey v. A E Dayton Services Ltd [1988] ICR 142 HL was a redundancy case but it is abundantly clear that not every finding of a failure in procedure amounts to an unfair dismissal. Those considerations are set out by the learned Lord Chancellor, Lord Mackay of Clashfern in the well known passages, they are at p.153 between D and G. So our understanding, doing the best we can, is that first, that there had been a decision to dismiss prior to the disciplinary meeting. Second, that it was potentially unfair and that was based upon the well known case of Weddel v. Tepper [1980] ICR 286 and that the Tribunal had not decided whether it was, in fact, unfair. What then are we to do? Are we to send it back to the Tribunal to consider it? The decision was as long ago as April 1991 and in our judgment it would be calamitous to send it back, if in fact sufficient facts had been found upon which we can reach our own conclusion.The only point here is the point on the disciplinary interview because the delay and the unfairness of that we have already rejected as did the Tribunal. Of course at the disciplinary interview it is different from an investigation per se. A number of obvious examples occur, as in this case, an Applicant would almost always be offered the opportunity of having a friend with them or being represented. Secondly, some time may have passed from the investigative process and there had been time for further thought and possibly further discussion with others. It presents an occasion when the employee knows what the allegation is; knows that he or she is at risk for dismissal and has an opportunity of saying anything finally. Moreover, in the opportunity to say something is the opportunity to offer some form of mitigation. Therefore in general terms, it seems to us, that the view taken in Weddel v. Tepper , although not a rule, nevertheless is a strong guide as to the appropriate and fair procedures to be adopted. Every case depends on its own facts, we can envisage situations where someone is caught with a hand in the till, or indeed one has a fight on the floor of a shop of an engineering company where there is moving machinery and it is wholly unsafe and dangerous to be fighting in any event; in those situations it may well be that there and then the manager of that shop hears the case and dismisses, just like that. Those sort of situations are not this situation. Here, there was a decision reached after investigation and before the disciplinary committee had been concerned and in our judgement here on the facts of the case there is only one conclusion which can be drawn, namely that that was a failure in procedure and a failure which was unfair.We feel, therefore, we feel, that the appropriate course here is to substitute a decision for that of the Industrial Tribunal that this was an unfair dismissal. Compensation, of course, is not for us it will be for the industrial tribunal if the Applicant chooses to take that course. No doubt she will receive advice on that matter, and it is a matter for her, but the concession made here, and rightly and appropriately made here, could very well mean that the reasonable response would be that an award of compensation would be nil or possibly de minimus. That is a matter which, no doubt, will be considered before deciding any further action.This appeal will be allowed.