Bryan Furby & Gordon v Howe [1993] UKEAT 595_93_1011

EAT
Bryan Furby & Gordon v Howe
[1993] UKEAT 595_93_1011 · 1993-11-10
HIS HONOUR JUDGE J BULL QC This is an appeal by Messrs Bryan Furby & Gordon against the Decision of the Industrial Tribunal sitting at Bedford on 26th May 1993 by which it awarded to Mrs Pauline Howe compensation for unfair dismissal in the sum of £6,834.10, full Reasons for that decision having been sent to the parties on 9th June 1993.The Respondents were in practice as a firm of solicitors, and Mrs Howe was employed by them from 28th February 1988 in the capacity of a legal secretary and audio typist working almost exclusively for a Mrs French who was an unqualified conveyancing clerk in the Conveyancing Department of that firm. The evidence before the Industrial Tribunal demonstrated that search warrants were executed at the Appellants' premises by the police on 4th November 1992 and in consequence a number of conveyancing files were seized by the police.On 20th November, Mr Collins, a partner in the Appellant firm went to the office of the Applicant and summarily dismissed her upon the alleged ground of misconduct in that having typed letters for Mrs French when such letters did not accord to the reality of the transactions upon the files, Mrs Howe was in breach of a duty to the partners in failing to have drawn such discrepancies to their attention.Mr Furby, who has appeared in person before us, has drawn our attention to the relevant case law including British Home Stores Ltd v. Burchell [1980] ICR 303 ; Parker v. Clifford Dunn [1979] ICR 463 at 468H and Inner London Authority v. Gravett [1988] IRLR 497 . Mr Furby contends that the Tribunal failed in determining the reason for dismissal in that they disregarded matters which they should have taken into account. He further contends that the Tribunal failed to specify whether the reason for dismissal was capable of making the dismissal fair and further that the Tribunal failed to consider or answer the question whether the employer had reasonable grounds for that belief.

The Tribunal specifically found in paragraph 5:-

"5 On these facts the respondents have put forward conduct as the reason for the applicant's dismissal. We accept that the respondents believed that this was the reason. However, it is for the tribunal to decide whether the respondent acted reasonably in treating their reason as a sufficient reason to dismiss, and it is in that respect that we are not satisfied, for it is quite clear to us that the respondents failed to conduct any proper investigations into the allegations that were being made, they merely looked at some of the files on which the applicant had typed letters and documents. The respondents did not hold any form of disciplinary hearing. The applicant was summarily dismissed without any prior warning, for she had clearly no idea at all why Mr Collins came to see her on the 20 November. Furthermore the applicant was given no opportunity to defend her previously good reputation nor was she given details of the allegations which were being made against her. There were no special circumstances in this case which might warrant a departure from what is now enshrined to be good industrial relations practice, and in those circumstances we have no hesitation in finding that the respondents' actions did not fall within the parameters of reasonable response. It follows that we find the dismissal of the applicant unfair."
Mr Furby recognises that an appeal to this Tribunal from the decision of the Industrial Tribunal which held that the dismissal was unfair can only be supported on a point of law, and there can be no question of us re-trying the matter. It appears to us to have been an exceptionally thorough enquiry by the Industrial Tribunal, and we have considered point by point the criticisms which Mr Furby makes of the decision. However, we consider that such criticisms are without any foundation: the Industrial Tribunal made specific findings in paragraphs 2, 4 and 5 which answer the complaints which have been made, and where there was no specific finding, their inference is plain. It would be a great error to conclude that by failing to mention every point or alleged breach in their reasons that the Industrial Tribunal must have overlooked it. Neither in the respects alleged, nor in any other respect can we find any error in the approach of the Industrial Tribunal.Mr Furby raises a further point upon the conduct of the investigation carried out by the employer. He suggests that there was no evidence before the Tribunal to the effect that further enquiry would have revealed anything of use. The Notes of Evidence starkly revealed the facts. At p.29 Mr Collins, a partner in that firm of solicitors, describes the dismissal in these terms:
"On 20 November I went to Mrs Howe's office - she was not forewarned that I was coming, and did not know why I wanted to see her - I started by saying that I had bad news for her in that she was to be dismissed for misconduct."

Mr Furby added to this at p.40 -

"I briefly asked Mrs Howe why she did not think things were strange and she told me that she had enquired but had been told not to worry.

This was the full extent of my investigation."

He further frankly conceded in cross-examination at p.39:
"It is our case that we dismissed her without affording her any opportunity to explain or giving any explanation."
In these circumstances it is plain that the Industrial Tribunal were entirely justified in their conclusions in the latter part of paragraph 5 of their reasons.The final criticism made by Mr Furby is that the Tribunal erred in assessing the award in failing to take into account the well-known case of Polkey v. Dayton Services Ltd . He contends that had a fair procedure been adopted the award should be reduced to zero. We can see no error of law in the approach of this Industrial Tribunal when it came to consider the quantum of the award in this case.For these reasons, it seems to us that this appeal falls to be dismissed and we dismiss it.