Jones & Anor v Brown [1993] UKEAT 516_91_0203

EAT
Jones & Anor v Brown
[1993] UKEAT 516_91_0203 · 1993-03-02
HIS HONOUR JUDGE HARGROVE OBE QC From 30th July 1986 the Appellants were employed by the Respondent (on behalf of the British Aerospace Welfare Association). The first Appellant was employed as a club steward and the second, his wife, as a member of the bar staff. They were supplied with living accommodation on site. Mr Clarke, the catering and reception manager and the Appellants' supervisor, became suspicious because the hours being claimed for by casual staff did not appear to tally with what would logically be expected. He made an investigation over a period of six weeks. His information came from diaries, trading records and till receipts. He also obtained confirmation from Mrs Williams, another employee. He asked Mr Jones to explain that there seemed to be too many hours being claimed. On 15th May 1990 Mr Clarke asked for the Jones' keys, suspended them both and indicated that a hearing would take place to consider the position. Mr Jones is said to have made a comment, "There is some money missing, I suppose you'll get me for that now".The Appellants had control of a float of money which seems to have been in the sum of £500. Apparently the staff were permitted to cash wages cheques through the float but it was a rule that such cheques should be banked as soon as possible. Mr Clarke checked the float and he found that there was a cheque for which there was no apparent explanation. The explanations given in relation to the cheque were that the original cheque had been put in when cash was extracted by the Jones', that that cheque was not to be regarded as one to be banked but was to be regarded as an `IOU'. When the alteration was made to the cheque this merely indicated that the IOU had been increased. It was not intended that that cheque should be banked but that they would in due course get sufficient money through the bank in the form of cash and repay the full sum. This was said to account for the fact that the cheque's alterations had not been initialled nor was the cheque in time in the sense that it was now some five months old and arguably was valueless. On 17th May the Appellants and their solicitor attended before Mr Clarke. A note was made contemporaneously. The problems in relation to working hours were put to the Appellants and they were also asked for an explanation of the state of the float. The hearing was adjourned and was reconvened on 21st May. The Appellants were told that they were being dismissed because they had both claimed payments and been paid for hours not actually worked. They had employed and authorised payments for additional staff. Further, that monies entrusted to them of which they were jointly accountable were in deficit by £516.96 and that in the circumstances they had betrayed their position of trust and they were dismissed from 21st May. They were also required to vacate their accommodation within four weeks.The Tribunal held that the dismissal was unfair because the dismissal did not pass the test set down for summary dismissals by the Respondent's procedure. While that finding in its context is somewhat surprising, because there had been a full appeal, nonetheless, no point is taken by the Respondent upon that finding, the only point of this appeal on behalf of the Appellants is that the Tribunal's finding that their contributory fault was 100% is wrong.The Appellants contend that at all times their case was that they were not dishonest and that they had not put into any document any false claim. In paragraph 4 of the Reasons:
"4 The allegations of claiming payment for hours which had not been worked were put to both applicants and according to the transcript Mr Jones said:-
"Sandra goes shopping. I am in the flat on call, available should it be necessary. I should have sent staff home, but didn't think. I am on call, I thought we were paid for being on the premises. I don't put down the times I am called in the mornings to show people around the Pavilion"
The exact wording of that note has been challenged. We are satisfied that that note fairly reflects the tenor of what Mr Jones was trying to convey, that albeit the worksheet did not show it, he worked hours additional to those claimed, so that thebalance of hours which he had worked and had not claimed for was made up in that way, and that he therefore was not claiming for money which was not owing to him."The point is reiterated again at paragraph 6 of the Reasons:
"The applicants' case is that the hours claimed may not have been those shown on the forms but there was no deceit or deception because they worked other hours which they did not claim for. It was sings and roundabouts and they were not dishonest. ..."
Our attention has been drawn to a number of occasions when the Appellants were putting forward the case that they had never made a false claim in the sense of filling in false figures.In our view in the light of the details given in the Appellants' IT1s namely:
"I have been wrongly accused of dishonesty. My employers had no reasonable reason to believe that I have been dishonest. I accepted some inaccuracies in paperwork but had received no prior warning in respect of this paperwork."
it is hardly surprising, when that was allied to the passage from the transcript which the Tribunal accepted, they reached the view that this was an account put forward by the Appellant. It is urged on behalf of the Appellants that if the Tribunal believed that there was admission that the wrong figures had been inserted in the claim forms, then it follows automatically that they were finding the Appellants guilty of dishonesty. Dishonesty requires acts or omissions which a reasonable individual would regard as being dishonest and in addition that the person accused of dishonesty should know that such conduct would be so regarded as being dishonesty by any reasonable individual. One could hardly have a better example for that division than the explanation given by the Appellants about the management of the float. We consider that there is adequate evidence upon which the Tribunal was entitled to form the view set forth in paragraphs 4 and 6 of the Reasons and that the claim of perversity here is misconceived.In relation to the float, the explanations given by the Appellants upon their own admission disclosed a breach of the rules of the employers and even disclosed a breach of the informal arrangements which they claimed to believe operated. On one occasion £100 was extracted from the float and no IOU was placed in it. Not surprisingly the employers denied that there was any arrangement condoning the approach suggested by the Appellants that in effect the float became a source of credit to which they could make repayments as and when they wished. The Tribunal held as follows at paragraph 7 of the Reasons:
"... The first question is:
"did the employers believe in the evidence upon which they dismissed concerning the hours and the float?"
We are unanimous that the employers did so believe. There is no other reason for the dismissal we find tenable and we reject an argument advanced on the first day of these proceedings that the employers wished them to leave their house for use by a groundsman. We think there is nothing in that and the employers dismissed because they genuinely believed that the applicants should be dismissed for the offences set out in their letter of dismissal. Secondly, we have to be satisfied that the sanction of dismissal was based upon evidence which a reasonable employer could find tenable. We are unanimous that that test is satisfied in this case. The evidence of the cheques and of the extra hours depends not only on oral evidence but on the evidence of the documents, the worksheets in particular. We accept Mr Clark's evidence that the hours worked were excessive on certain days, and we also find that the applicants were not there when the worksheets showed they were, and we are not satisfied with their explanation that they were owed the hours for other time worked but not claimed. ..."Needless to say these are findings which the Tribunal, having heard the evidence, was perfectly entitled to make. At paragraph 9 the Tribunal turns to the question of remedy:
"So far as remedy is concerned we are unanimous that both Mr and Mrs Jones, by their conduct in this matter, their slackness in procedure with the float, their indifference to the need to record actual hours worked brought this on themselves. Their behaviour has been such that we have found the respondent had a justifiable ground, that of conduct, for dismissing them. It would be wrong in these circumstances for the respondent to have to pay compensation for an outcome for which the applicants bear so much responsibility. We are unanimous that their contributory fault be assessed at 100%. ..."
Two principal points are taken against this finding, the first is that the Chairman's notes were incomplete and the second is that there is a contradiction between paragraph 7 which it is said is tantamount to a finding of dishonesty and paragraph 9 when the expression "slackness in procedure with the float" is the expression used. In our view there is nothing in these points. Admittedly the Chairman's notes could have been fuller but it has never been expected of a Chairman of a Tribunal that he should take a complete transcript. The fact that others present had more time to devote to recording the exact words does not mean that the Chairman has failed in his duty. Upon the second issue, it is necessary to distinguish between the two functions which the Tribunal was carrying out. The first is to discover what the employer, after proper investigation, reasonably believed. In many cases that will be precisely the same as the Tribunal may themselves believe at the end of the evidence. The fact that the Tribunal, in assessing the conduct for the purposes of S.73(7)(b) and S.74(6) expresses such findings in different terms to those used in relation to the belief of the employer does not invalidate the employer's assessment of the conduct of the Appellants.The Tribunal had the opportunity of seeing the parties. In a case such as this, this Court has frequently been instructed that unless the decision is perverse this Tribunal should not be anxious to interfere with the Industrial Tribunal's assessment. Even if that rule were not so we would not interfere in this case as we would have reached, on the documents before us, the same conclusion as the Tribunal did.In the circumstances none of the points on appeal discloses any merit and this appeal is dismissed.