Monk & Anor v C Brewer & Sons [1993] UKEAT 811_92_1512

EAT

Monk & Anor v C Brewer & Sons

[1993] UKEAT 811_92_1512 · 1993-12-15

MR JUSTICE TUCKER : These are employees' appeals from a decision of an Industrial Tribunal sitting at London (North) on 12/13 March 1992 that the Appellants were not unfairly dismissed. At the hearing before the Tribunal the Appellants were not represented. Today, before us, they have been represented by Counsel, Mr Bushell.

The Appellants were dissatisfied with the decision. They applied to the Chairman of the Industrial Tribunal for a review. That was refused on 28 May 1992. Notice of Appeal had already been served on 7 May. The appeal has had a chequered career. The matter was considered by this Appeal Tribunal on documentation and the Appeal Tribunal decided on 16 July 1992 that there was no arguable point of law disclosed and they dismissed the appeal.

The Appellants complained about that to the Ombudsman who referred the matter to the Appellants' Member of Parliament. He took the matter up on their behalf. The result was that on 16 February 1993 this Appeal Tribunal reviewed their previous decision. On this occasion there was an oral hearing ex parte, at which the Appellants were represented by Mr Bushell. This time the Appeal Tribunal ordered that the appeal be allowed to proceed to a Full Hearing with a direction that the Chairman be asked to produce Notes of Evidence.

There is no doubt that the matter is now properly before us and Counsel appearing for the Respondents takes no contrary point.

The Appellants are Mrs Maureen Linfield and Mr Richard Monk. They lived together as man and wife. They were employed as sales assistant and manager respectively by the Respondents at their Collier Row sub-depot. That was used as a general store for bulk quantities of white paint from which tins of paint were supplied to users and to other branches of the Respondents. The premises themselves were small and comprised an office and a warehouse.

In 1989 and 1990 it came to the notice of the Respondents that the gross profit at their depot had fallen. They caused stock-takings to be carried out. It then appeared that in the 13 week period between December 1990 and April 1991 there were 894 tins of paint unaccounted for. Some of these would be 5, or even 10 litre tins. It was, as one of the Appellants agreed at the Tribunal, an enormous quantity and it had clearly been stolen.

At the relevant time there were only 3 people working at the premises, these 2 Appellants and a man named Mr Earp, who lived with his wife in a flat above the premises. The Appellants were interviewed and neither of them could give any reasonable explanation for what had occurred. They were suspended and interviewed again a fortnight later. Again neither could give an explanation and they and Mr Earp were dismissed. This was obviously a very serious matter for the Appellants, particularly because they had worked there for a long time. They had denied their involvement in any theft throughout.

The Respondents notified the police. The police decided not to intervene so the only investigation into the circumstances was that carried out by the Respondents themselves. There was no evidence about where the missing paint had gone to and no direct evidence against either of these Appellants. We make it clear, as the Tribunal did, that we are not sitting as a Court of Law in a criminal case and that it is not our function to decide whether or not it has been proved that either or both of these Appellants is guilty of theft. There have been no criminal proceedings and no conviction.

Our sole function is to consider whether or not the Industrial Tribunal made any mistake about the law which would include looking to see whether or not the Tribunal's decision was perverse in the sense that it was a decision which no Tribunal properly directing itself could have arrived at. We are not empowered to conduct a re-hearing or to make an evaluation of the evidence. That is what the Tribunal have to do for they alone are the Tribunal of fact.

In this appeal Mr Bushell submits that there was an error of law in that the Tribunal wrongly applied the principle set out by Mr Justice Wood and the members in the case of Parr v Whitbread & Co plc

[1990] ICR 427

. At page 432 we read:

"In an attempt to analyse the Monie principles where dishonesty is involved together with the Whitbread principles where mere incapability was involved, we ourselves would suggest that a possible approach is as follows, and in setting it out I have had the benefit of the views of the industrial members with their experience. If an industrial tribunal is able to find on the evidence before it: (1) that an act had been committed which if committed by an individual would justify dismissal; (2) that the employer had made a reasonable - sufficiently thorough - investigation into the matter and with appropriate procedures; (3) that as a result of that investigation the employer reasonably believed that more than one person could have committed the act; (4) that the employer had acted reasonably in identifying the group of employees who could have committed the act and that each member of the group was individually capable of so doing; (5) that as between the members of the group the employer could not reasonably identify the individual perpetrator; then provided that the beliefs were held on solid and sensible grounds at the date of dismissal, an employer is entitled to dismiss each member of that group."

In the present case the Respondents made what is sometimes referred to as a "blanket dismissal". We recognise that such a course can work injustice to individuals and therefore there is a heavy burden upon the Respondents to justify it.

The Appellants concede that condition(1) in Parr is satisfied: that is to say that an act has been committed which, if committed by an individual would justify dismissal but it is submitted that the Respondents did not comply with condition

(2) in that they did not make a reasonable or sufficiently thorough investigation into the matter and with the appropriate procedures.

The essence of the Appellants' case is that the Respondents were too hasty. They should have waited a few weeks and in particular until Mr Earp went on holiday in order to see whether the thefts continued in his absence. The Appellants' evidence at the Tribunal was that theft had continued during the Appellants' absence a week or two earlier.

The Respondents' answer to this criticism is that to have waited would have proved nothing. The submission is referred to by the Tribunal in their Reasons at paragraph 20 where they say this:

"We have come to the conclusion that no such conclusion could necessarily have been reached, for if the paint continued to go missing when Mr Earp was away it would have proved that the Applicants were liable, whereas if it stopped going missing while Mr Earp was away it would merely show that the two Applicants could have been circumspect and stopped the illegal activity in the absence of Mr Earp."

Moreover it is submitted that it was reasonable for an employer to decide not to wait any longer in view of the scale of what was described as the haemorrhaging of stock. The Tribunal considered this in the light of Parr and made a specific finding about it at paragraph 3 and again in paragraphs 23 and 25 of their decision where they say:

"We accept that the employer in this case made a reasonable and sufficiently thorough investigation into the matter using the appropriate procedures...

An employer is not a branch of the police force; he has to carry out a reasonable investigation and we feel that once the employer accepted that the stocktaking was done correctly and the disparity found, there was little further investigation that could be done."

The Appellants' Counsel criticises this finding because there is no reference to what else the Respondents could and should have done but in the absence of any involvement by the police it is difficult to see what else the Respondents could have done. Counsel referred to the possibility of using an `agent provocateur'. But we do not regard this as something which either the Respondents or the Industrial Tribunal should have considered as a reasonable course to take. We are quite unable to accept the submission that this amounted to an error of law on the part of the Tribunal. In our opinion they made the correct approach and applied the Parr test faithfully and accurately. It could not possibly be said that the finding which the Tribunal made about this was perverse.

Mr Bushell's second submission was that the Tribunal failed adequately to distinguish between the two Appellants as the evidence was to the effect that Mrs Linfield had much less involvement in the stock on the premises. There was, in fact, evidence that she liked to control the paperwork and it was disputed before the Tribunal that she took a lesser role. It has to be remembered that the Appellants lived together as man and wife and that between them they represented two-thirds of the workforce. Although Mrs Linfield worked in the office which was separate from the warehouse it was apparently only 10 yards away.

The Tribunal observed at paragraph 26 of their decision:

"It would be very difficult, we think, for this quantity to go out of this branch without the people in the branch becoming aware of it."

We can see no reason for distinguishing between the Appellants and we do not believe there is any possible ground for criticising the Tribunal for failing to do so.

This was a careful decision after a proper review of the evidence and adopting the correct principles of law. We can see no defect in it and certainly no error in law. Accordingly these appeals are dismissed.